The DOJ continues to encounter problems in some of its signature FCPA prosecutions.
Earlier this month, it was the Giffen Gaffe (see here).
Last fall, U.S. District Court Judge Shira Scheindin (S.D.N.Y.) remarked at Fredrick Bourke's sentencing that "after years of supervising this case, it's still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both." (See here).
And then there is Victor Kozeny, indicted along with Bourke, and the alleged mastermind of the fraudulent investment scheme related to the privatization of state-owned businesses in the Republic of Azerbaijan.
In 2005, Kozeny was criminally charged (see here) with, among other charges, one count of engaging in a conspiracy to violate the FCPA and twelve counts of violating the FCPA.
To make a long story short, Kozeny remains the most famous FCPA fugitive living a comfortable life in the Bahamas. The DOJ's repeated efforts to extradite him from the Bahamas to the U.S. have failed. See here.
In the indictment, the DOJ asserted that "Peak House" a multi-million dollar property in Aspen, Colorado was the site of certain of Kozeny's criminal activity.
Peak House was sold in 2001 for approximately $22 million and the DOJ sought civil forfeiture of the funds it alleged were connected to Kozeny's criminal activity.
However, U.S. District Court Judge Harold Baer (S.D.N.Y.) recently concluded that the DOJ's attempt was barred by the statute of limitations.
This latest DOJ setback in the Kozeny affair would seem embarrassing for the DOJ given that Judge Baer criticized the DOJ's lack of diligence in even attempting to file a civil forfeiture suit in a timely fashion.
Judge Baer concludes his opinion (see here) by stating:
"It is unfortunate that this action, which appears to have some merit and involves a substantial amount of funds, must be dismissed on procedural grounds, but there is no question that the Government learned of the Peak House funds at the very latest by 2005 and sat on its hands until 2009."
Brian Whisler (here), a former federal prosecutor and current partner in
Baker & McKenzie's white collar practice and individual who brought this decision to my attention, noted that "this defeat on procedural grounds represents yet another bump in the road for DOJ in the Bourke/Kozeny matter and suggests that DOJ will likely persist in its pursuit of Kozeny now that a criminal conviction is legally required to effect forfeiture of the sale proceeds of Kozeny's Aspen home and other assets."
Showing posts with label Bourke. Show all posts
Showing posts with label Bourke. Show all posts
Monday, August 23, 2010
Wednesday, August 11, 2010
Outlining Bourke's Appeal
The DOJ recently filed its reply brief (here) in Frederic Bourke's appeal.
A prior post (here) summarized the FCPA related issues in Bourke's brief and this post summarizes the DOJ's reply brief.
The DOJ begins with this paragraph:
"The evidence at trial established that Bourke, a successful entrepreneur and multi-millionaire, knowingly backed rogue investor Viktor Kozeny in a corrupt plan to purchase the state-owned Azerbaijani oil industry, in secret partnership with the president of Azerbaijan, Heydar Aliyev, and his family. The corrupt plan included the payment of bribes to Aliyev and other officials."
The DOJ states - "[a]t some point, Bourke learned about Kozeny’s business success and strategies from a December 1996 Fortune magazine article." The brief states that the article "detailed Kozeny’s insider trading, purchase of state secrets from a government official, and other fraudulent activity." According to the DOJ, "[h]aving read the article and discussed it with his lawyers, Bourke was aware of Kozeny’s questionable business practices; but Bourke was impressed by the outsized profits Kozeny generated in this scheme, and, as Bourke would later tell a prospective investor, Kozeny had not actually been convicted of a crime."
Bourke's trial principally focused on his investments in Oily Rock, a vehicle the government maintains was used to funnel bribe payments to Azerbaijan officials to ensure that the officials would privatize the State Oil Company of the Azerbaijan Republic (SOCAR) in a rigged auction that only the investors, including Bourke, Kozeny and others could win.
The DOJ states that "Bourke made his initial investment in Oily Rock without directing any of his many lawyers to conduct due diligence."
According to the DOJ:
"Bourke’s interest in the investment was motivated by his knowledge of the corrupt arrangement. Because Bourke knew of the payments to Azerbaijani officials, Bourke demonstrated an assured confidence in the success of the privatization, even though most of the investors who were not privy to the details of the conspiracy viewed it as extremely risky. The inherent risk in the investment arose from the fact that the privatization of SOCAR required a presidential decree."
The DOJ nevertheless acknowledges that many others invested, directly or indirectly, in Oily Rock including former U.S. Senator George Mitchell and other individuals, institutional investors and hedge funds, AIG and Columbia University.
Bourke's appellate brief argued that the district court "committed a series of errors that crippled Bourke's mens rea defense."
Below is a summary of Bourke's arguments along with the DOJ's response as set forth in its reply brief.
Bourke
"The district court improperly instructed on conscious avoidance, despite the absence of evidence that Bourke deliberately avoided knowledge of Kozeny's bribes." According to Bourke, this instruction was error "because there was no evidence that Bourke deliberately avoided learning about Kozeny's bribery." Bourke states that the conscious avoidance instruction "was particularly damaging because the government presented evidence and argued that Bourke failed to exercise adequate due diligence, thus exacerbating the risk inherent in the conscious avoidance instruction that the jury would convict for negligence or recklessness.
DOJ
"There was an ample factual basis for a conscious avoidance charge in this case. To be sure, the Government’s principal theory at trial was that Bourke had actual knowledge of the bribery scheme. But the jury easily could have found, in the alternative, that Bourke was aware of a high probability of the existence of corrupt arrangements, yet deliberately avoided confirming that fact. Such a finding would have been supported, by, among other things, the following evidence:
• Bourke was aware of the high level of corruption in Azerbaijan generally.
• Bourke had read a Fortune magazine article that described Kozeny’s reliance on illegal business practices, such as insider trading, purchase of state secrets from a government official, and fraud, to accomplish the goals of a privatization scheme. This article alerted Bourke that there was a high probability that Kozeny’s latest scheme involving Azerbaijan also included corrupt arrangements, such as bribe payments or offers to pay bribes.
• Bourke defended Kozeny by stating that he had not actually been convicted of a crime.
• Bourke expressed concern to other investors and their attorneys that Kozeny and his employees were paying bribes.
• Bourke proposed the formation of separate companies affiliated with Oily Rock and Minaret to shield Bourke and other American investors from liability from any corrupt payments.
• Bourke played a role in coordinating United States medical treatments, combined with tourism and shopping excursions, for Azerbaijani officials.
From these facts, among others, a rational juror could have concluded that Bourke was aware of a high probability of the existence of corrupt arrangements, yet deliberately avoided confirming that fact. Accordingly, Bourke is wrong when he suggests that a conscious avoidance was inappropriate because 'the trial record contains no evidence that Bourke ‘decided not to learn’ about Kozeny’s bribery.' In fact, a conscious avoidance instruction was particularly appropriate in this case, because Bourke’s corporate attorney had actually cautioned him that, if he thought there might be bribes paid, he could not just look the other way."
"Bourke’s assertion that the conscious avoidance instruction allowed the jury to convict on a negligence theory is mistaken. To the contrary, the District Court told the jury that it could not find Bourke guilty merely because he was negligent. The Government did not argue that the jury should convict because Bourke was negligent in failing to ask his lawyers to conduct due diligence. Rather, the Government argued that Bourke refrained from asking his lawyers to conduct due diligence either because he was consciously avoiding learning about the bribes or because he did not want his lawyers to learn the true facts of his corrupt investment."
"In sum, a rational juror could have concluded based on, among other things, Bourke’s close relationship to Kozeny and other co-conspirators, Bourke’s understanding of the Azerbaijan investment and the Azerbaijani government, and Bourke’s previously expressed concerns about Kozeny’s paying of bribes, that Bourke was aware of a high probability that Kozeny was paying bribes but deliberately avoided confirming that fact. Accordingly, the District Court properly instructed the jury on the doctrine of conscious avoidance."
"Even if the District Court erred in instructing the jury on the doctrine of conscious avoidance (and it did not), the error would provide no basis for vacating Bourke’s conviction. This Court has repeatedly ruled that a conscious avoidance instruction is harmless in cases where, as here, there was sufficient evidence of the defendant’s actual knowledge to support the jury’s verdict."
"Moreover, conscious avoidance was not a prominent feature of the Government’s arguments to the jury. Although the Government did refer to evidence of Bourke’s conscious avoidance, the Government’s primary argument was that Bourke had actual knowledge of the bribes."
Bourke
The district court erred in admitting testimony about the due diligence performed by Texas Pacific Group ("TPG"), an investment fund that did not make the same investment as Bourke, because its lawyers advised of the FCPA risk.
According to Bourke, because he knew nothing about their work, their testimony was irrelevant to his state of mind particularly since the results were never shared or communicated with him.
Bourke states that "the government offered the testimony [...] solely as a contrast with the comparatively skimpy inquiry that Bourke and his lawyers performed" and that this testimony "increased the risk, created by the conscious avoidance instruction and heightened by the government's closing, that the jury would convict Bourke based on his negligence or recklessness -- what he should have known, rather than what he actually knew."
Bourke further argues that having admitted the TPG testimony, "the district court should at least have permitted Bourke to present the contrasting testimony" of the head of investments for Columbia University that would have established that "Columbia invested $15 million with Kozeny in Azeri privatization after due diligence comparable to Bourke's."
According to Bourke, this excluded testimony "would have rebutted the government's claim that his lack of due diligence compared to TPG established his culpability."
Bourke argues that "once the district court permitted the government to present TPG's due diligence as a benchmark for measuring [his] inquiry, fairness demanded that [he] be allowed to present the contrasting picture of Columbia's due diligence, which resembled his own."
DOJ
"The testimony of Wheeler and Rossman [individuals who conducted due diligence for potential Oily Rock investor David Bonderman of TPG] was not offered to show Bourke was negligent; the purpose was to show that Kozeny had not concealed evidence of the corrupt arrangements from potential investors in Oily Rock. Given that Bourke was much closer to Kozeny than Bonderman was, this was important circumstantial evidence of Bourke’s knowledge. As such, the testimony was relevant and appropriately admitted by the District Court."
"To conduct due diligence on the Oily Rock investment, at Kozeny’s invitation, Wheeler traveled to Baku with Bourke and several other potential investors; together, they toured Kozeny’s operations and were introduced to Azerbaijani government officials. Based on what she saw during her visit and her assessment that the investment was “risky [in] nature”, Wheeler and Bonderman brought in TPG’s outside counsel, Cleary Gottlieb, to perform due diligence. Rossman testified that, in 1998, he was a Cleary Gottlieb attorney. During that time, he was asked to conduct due diligence on the Oily Rock investment for TPG. As a part of due diligence, Rossman met with Bodmer at Bodmer’s law offices. During this meeting, Bodmer provided Rossman with various documents related to the Oily Rock investment, and Bodmer and Rossman discussed various details regarding the investment, including the involvement of Azerbaijani investors. Based on his review of documents, his understanding of the investment thesis, and Kozeny’s reputation, which he researched from news coverage, Rossman concluded that this proposed investment could violate the FCPA, and he advised his client not to make the investment. TPG did not invest in Oily Rock."
"... Wheeler and Rossman’s testimony was appropriately admitted, because Bourke was exposed at minimum to the same sources of information as Wheeler and Rossman — Wheeler and Bourke took the same factfinding trip to Baku in January 1998, and Rossman, like Bourke, learned of the investment structure from Bodmer. Accordingly, this testimony was probative of Bourke’s knowledge."
"... the District Court’s decision to admit Wheeler and Rossman’s testimony was entirely appropriate. Moreover, given the volume of direct and circumstantial evidence of Bourke’s knowledge of the conspiracy’s objectives, any conceivable error was harmless."
"Bourke also contends that the District Court erred in barring the testimony of Bruce Dresner, who served as Columbia University’s Vice President for Investments in 1998, and, in that capacity, based on representations by Omega’s Clayton Lewis and Leon Cooperman, recommended that Columbia invest $15 million in privatization vouchers through Omega. Bourke complains that, although the Government was permitted to call Wheeler and Rossman to contrast their due diligence with Bourke’s, he was not permitted to contrast his due diligence with Columbia’s. The comparison is inapt. Unlike Wheeler and Rossman, who testified about a potential investment in Oily Rock itself, Columbia University was a potential investor in Omega, which was merely planning to invest alongside Oily Rock. The District Court did not abuse its discretion in excluding this proposed testimony."
"The District Court properly precluded Dresner’s testimony because it was not relevant. As the District Court stated, Dresner’s state of mind “has nothing to do with the defendant on trial.” Unlike other defense witnesses and Government witnesses who were present in Baku with Bourke to consider an investment in Oily Rock and therefore possessed relevant information regarding Bourke’s knowledge, Dresner had no contact with Bourke and was considering investing in Omega, not Oily Rock. Dresner never traveled to Azerbaijan to investigate the investment opportunity, relying instead on the recommendation of Omega. Dresner never met Kozeny, Farrell, or Bodmer — the individuals who discussed the FCPA violations with Bourke."
"In addition, Dresner’s testimony would not have been particularly helpful to Bourke, and therefore any error in excluding the testimony would have been harmless. Notwithstanding Dresner’s exclusion, Bourke offered evidence through several Government and defense witnesses that Columbia University had invested in the same project, and there was no suggestion in any of that testimony or in arguments that Columbia University was aware of bribes or was prosecuted. Thus, Bourke was able to establish that some investors in the Azerbaijani vouchers were not aware of the bribes. Had Dresner actually testified, he would have revealed that Columbia and Bourke were not similarly situated and that Columbia had much less information about the investment than Bourke did."
"In sum, the District Court acted within its discretion in excluding Dresner’s testimony, and this ruling does not warrant a new trial."
Bourke
The district court "refused to instruct that conviction for conspiracy requires the same mens rea as the underlying FCPA offense -- meaning (among other things) a bad purpose to disobey or disregard the law."
According to Bourke, "the district court compounded its error in giving the conscious avoidance instruction by rejecting [his] requested instruction [as to the conspiracy charge] that the government had to prove that he acted corruptly and willfully."
Bourke argued that "when the district court turned to the mens rea required for the conspiracy offense, rather than for a substantive FCPA offense, it omitted the requirement that the defendant act corruptly" and that this "watering-down of the mens rea requirement for the conspiracy charged [...] undermined [his] defense, which rested on his state of mind."
DOJ
"Bourke did not lodge this objection in this District Court, and therefore, this part of the charge is reviewed for plain error. The District Court’s mens rea instruction was correct and was certainly not plainly erroneous."
"The District Court instructed the jury on all the elements of a substantive FCPA violation, including the requirement that the defendant act “willfully” and “corruptly,” terms which the Court defined for the jury."
"The District Court’s charge encompassed the mens rea elements of the FCPA and was not plainly erroneous. The “word ‘corruptly’ in the FCPA signifies . . . a bad or wrongful purpose and an intent to influence a foreign official to misuse his official position. But there is nothing in the word or any thing else in the FCPA that indicates that the government must establish that the defendant in fact knew that his or her conduct violated the FCPA to be guilty.”
"The District Court’s extensive instructions on mens rea included the instruction that Bourke had to act “with the specific intention of furthering [the conspiracy’s] business or objective” and “for the purpose of furthering the illegal undertaking.” It is simply not possible to conspire to act corruptly without acting corruptly."
"Finally, Bourke failed to raise this highly abstract objection during any of the several conferences on the jury charge."
"Accordingly, the charge is subject to review only for plain error. There was no error, much less plain error, in this case."
Bourke
The district court "rejected Bourke's proposed good faith instructions, even though [he] produced ample evidence to warrant the instructions and no other instruction covered the point."
Bourke argued that his proposed instruction "accurately reflected the principle that a defendant's good faith belief that he acted lawfully negates the mens rea for specific intent offenses."
While Bourke concedes that his efforts to investigate the investment "were not as extensive" as others, his efforts "suffice for a good faith instruction." Because the case turned on his state of mind, Bourke states that "there is no doubt that the good faith defense, if accepted by the jury, would have produced an acquittal."
DOJ
"Bourke’s contention is without merit. A separate good faith instruction was not necessary in this case, as the relevant jury instructions effectively communicated the essence of a good faith defense in its discussion of the elements of knowledge and willfulness."
"Indeed, the District Court’s instructions that an FCPA violation required a defendant to act “with a bad purpose to disobey or disregard the law” and that the Government could not meet its burden of proof by showing that the defendant’s actions were the result of “mere negligence or some other innocent explanation” captured the concepts identified in Bourke’s proposed charge — that Bourke could not be convicted of Count One if he believed he “was acting properly in connection with the matters alleged in [Count One], even if he was mistaken in that belief, and even if others were injured by his conduct." [...] Thus, the good faith instructions Bourke requested were “effectively presented elsewhere in the charge.” Accordingly, the District Court’s decision not to deliver a separate good faith charge was appropriate and does not provide a basis for a new trial."
Bourke
"Any one of the errors concerning [his] knowledge of Kozeny's bribes and his specific criminal intent, standing alone, warrants reversal" and if any one error is harmless in isolation, then their "cumulative effect profoundly damaged [his] defense."
DOJ
"Bourke contends correctly that the cumulative effect of errors that are individually harmless can cast doubt upon the fairness of a conviction. For the reasons set forth above, there were no such errors. Accordingly, Bourke’s “cumulative effect” argument provides no basis for granting a new trial."
A prior post (here) summarized the FCPA related issues in Bourke's brief and this post summarizes the DOJ's reply brief.
The DOJ begins with this paragraph:
"The evidence at trial established that Bourke, a successful entrepreneur and multi-millionaire, knowingly backed rogue investor Viktor Kozeny in a corrupt plan to purchase the state-owned Azerbaijani oil industry, in secret partnership with the president of Azerbaijan, Heydar Aliyev, and his family. The corrupt plan included the payment of bribes to Aliyev and other officials."
The DOJ states - "[a]t some point, Bourke learned about Kozeny’s business success and strategies from a December 1996 Fortune magazine article." The brief states that the article "detailed Kozeny’s insider trading, purchase of state secrets from a government official, and other fraudulent activity." According to the DOJ, "[h]aving read the article and discussed it with his lawyers, Bourke was aware of Kozeny’s questionable business practices; but Bourke was impressed by the outsized profits Kozeny generated in this scheme, and, as Bourke would later tell a prospective investor, Kozeny had not actually been convicted of a crime."
Bourke's trial principally focused on his investments in Oily Rock, a vehicle the government maintains was used to funnel bribe payments to Azerbaijan officials to ensure that the officials would privatize the State Oil Company of the Azerbaijan Republic (SOCAR) in a rigged auction that only the investors, including Bourke, Kozeny and others could win.
The DOJ states that "Bourke made his initial investment in Oily Rock without directing any of his many lawyers to conduct due diligence."
According to the DOJ:
"Bourke’s interest in the investment was motivated by his knowledge of the corrupt arrangement. Because Bourke knew of the payments to Azerbaijani officials, Bourke demonstrated an assured confidence in the success of the privatization, even though most of the investors who were not privy to the details of the conspiracy viewed it as extremely risky. The inherent risk in the investment arose from the fact that the privatization of SOCAR required a presidential decree."
The DOJ nevertheless acknowledges that many others invested, directly or indirectly, in Oily Rock including former U.S. Senator George Mitchell and other individuals, institutional investors and hedge funds, AIG and Columbia University.
Bourke's appellate brief argued that the district court "committed a series of errors that crippled Bourke's mens rea defense."
Below is a summary of Bourke's arguments along with the DOJ's response as set forth in its reply brief.
Bourke
"The district court improperly instructed on conscious avoidance, despite the absence of evidence that Bourke deliberately avoided knowledge of Kozeny's bribes." According to Bourke, this instruction was error "because there was no evidence that Bourke deliberately avoided learning about Kozeny's bribery." Bourke states that the conscious avoidance instruction "was particularly damaging because the government presented evidence and argued that Bourke failed to exercise adequate due diligence, thus exacerbating the risk inherent in the conscious avoidance instruction that the jury would convict for negligence or recklessness.
DOJ
"There was an ample factual basis for a conscious avoidance charge in this case. To be sure, the Government’s principal theory at trial was that Bourke had actual knowledge of the bribery scheme. But the jury easily could have found, in the alternative, that Bourke was aware of a high probability of the existence of corrupt arrangements, yet deliberately avoided confirming that fact. Such a finding would have been supported, by, among other things, the following evidence:
• Bourke was aware of the high level of corruption in Azerbaijan generally.
• Bourke had read a Fortune magazine article that described Kozeny’s reliance on illegal business practices, such as insider trading, purchase of state secrets from a government official, and fraud, to accomplish the goals of a privatization scheme. This article alerted Bourke that there was a high probability that Kozeny’s latest scheme involving Azerbaijan also included corrupt arrangements, such as bribe payments or offers to pay bribes.
• Bourke defended Kozeny by stating that he had not actually been convicted of a crime.
• Bourke expressed concern to other investors and their attorneys that Kozeny and his employees were paying bribes.
• Bourke proposed the formation of separate companies affiliated with Oily Rock and Minaret to shield Bourke and other American investors from liability from any corrupt payments.
• Bourke played a role in coordinating United States medical treatments, combined with tourism and shopping excursions, for Azerbaijani officials.
From these facts, among others, a rational juror could have concluded that Bourke was aware of a high probability of the existence of corrupt arrangements, yet deliberately avoided confirming that fact. Accordingly, Bourke is wrong when he suggests that a conscious avoidance was inappropriate because 'the trial record contains no evidence that Bourke ‘decided not to learn’ about Kozeny’s bribery.' In fact, a conscious avoidance instruction was particularly appropriate in this case, because Bourke’s corporate attorney had actually cautioned him that, if he thought there might be bribes paid, he could not just look the other way."
"Bourke’s assertion that the conscious avoidance instruction allowed the jury to convict on a negligence theory is mistaken. To the contrary, the District Court told the jury that it could not find Bourke guilty merely because he was negligent. The Government did not argue that the jury should convict because Bourke was negligent in failing to ask his lawyers to conduct due diligence. Rather, the Government argued that Bourke refrained from asking his lawyers to conduct due diligence either because he was consciously avoiding learning about the bribes or because he did not want his lawyers to learn the true facts of his corrupt investment."
"In sum, a rational juror could have concluded based on, among other things, Bourke’s close relationship to Kozeny and other co-conspirators, Bourke’s understanding of the Azerbaijan investment and the Azerbaijani government, and Bourke’s previously expressed concerns about Kozeny’s paying of bribes, that Bourke was aware of a high probability that Kozeny was paying bribes but deliberately avoided confirming that fact. Accordingly, the District Court properly instructed the jury on the doctrine of conscious avoidance."
"Even if the District Court erred in instructing the jury on the doctrine of conscious avoidance (and it did not), the error would provide no basis for vacating Bourke’s conviction. This Court has repeatedly ruled that a conscious avoidance instruction is harmless in cases where, as here, there was sufficient evidence of the defendant’s actual knowledge to support the jury’s verdict."
"Moreover, conscious avoidance was not a prominent feature of the Government’s arguments to the jury. Although the Government did refer to evidence of Bourke’s conscious avoidance, the Government’s primary argument was that Bourke had actual knowledge of the bribes."
Bourke
The district court erred in admitting testimony about the due diligence performed by Texas Pacific Group ("TPG"), an investment fund that did not make the same investment as Bourke, because its lawyers advised of the FCPA risk.
According to Bourke, because he knew nothing about their work, their testimony was irrelevant to his state of mind particularly since the results were never shared or communicated with him.
Bourke states that "the government offered the testimony [...] solely as a contrast with the comparatively skimpy inquiry that Bourke and his lawyers performed" and that this testimony "increased the risk, created by the conscious avoidance instruction and heightened by the government's closing, that the jury would convict Bourke based on his negligence or recklessness -- what he should have known, rather than what he actually knew."
Bourke further argues that having admitted the TPG testimony, "the district court should at least have permitted Bourke to present the contrasting testimony" of the head of investments for Columbia University that would have established that "Columbia invested $15 million with Kozeny in Azeri privatization after due diligence comparable to Bourke's."
According to Bourke, this excluded testimony "would have rebutted the government's claim that his lack of due diligence compared to TPG established his culpability."
Bourke argues that "once the district court permitted the government to present TPG's due diligence as a benchmark for measuring [his] inquiry, fairness demanded that [he] be allowed to present the contrasting picture of Columbia's due diligence, which resembled his own."
DOJ
"The testimony of Wheeler and Rossman [individuals who conducted due diligence for potential Oily Rock investor David Bonderman of TPG] was not offered to show Bourke was negligent; the purpose was to show that Kozeny had not concealed evidence of the corrupt arrangements from potential investors in Oily Rock. Given that Bourke was much closer to Kozeny than Bonderman was, this was important circumstantial evidence of Bourke’s knowledge. As such, the testimony was relevant and appropriately admitted by the District Court."
"To conduct due diligence on the Oily Rock investment, at Kozeny’s invitation, Wheeler traveled to Baku with Bourke and several other potential investors; together, they toured Kozeny’s operations and were introduced to Azerbaijani government officials. Based on what she saw during her visit and her assessment that the investment was “risky [in] nature”, Wheeler and Bonderman brought in TPG’s outside counsel, Cleary Gottlieb, to perform due diligence. Rossman testified that, in 1998, he was a Cleary Gottlieb attorney. During that time, he was asked to conduct due diligence on the Oily Rock investment for TPG. As a part of due diligence, Rossman met with Bodmer at Bodmer’s law offices. During this meeting, Bodmer provided Rossman with various documents related to the Oily Rock investment, and Bodmer and Rossman discussed various details regarding the investment, including the involvement of Azerbaijani investors. Based on his review of documents, his understanding of the investment thesis, and Kozeny’s reputation, which he researched from news coverage, Rossman concluded that this proposed investment could violate the FCPA, and he advised his client not to make the investment. TPG did not invest in Oily Rock."
"... Wheeler and Rossman’s testimony was appropriately admitted, because Bourke was exposed at minimum to the same sources of information as Wheeler and Rossman — Wheeler and Bourke took the same factfinding trip to Baku in January 1998, and Rossman, like Bourke, learned of the investment structure from Bodmer. Accordingly, this testimony was probative of Bourke’s knowledge."
"... the District Court’s decision to admit Wheeler and Rossman’s testimony was entirely appropriate. Moreover, given the volume of direct and circumstantial evidence of Bourke’s knowledge of the conspiracy’s objectives, any conceivable error was harmless."
"Bourke also contends that the District Court erred in barring the testimony of Bruce Dresner, who served as Columbia University’s Vice President for Investments in 1998, and, in that capacity, based on representations by Omega’s Clayton Lewis and Leon Cooperman, recommended that Columbia invest $15 million in privatization vouchers through Omega. Bourke complains that, although the Government was permitted to call Wheeler and Rossman to contrast their due diligence with Bourke’s, he was not permitted to contrast his due diligence with Columbia’s. The comparison is inapt. Unlike Wheeler and Rossman, who testified about a potential investment in Oily Rock itself, Columbia University was a potential investor in Omega, which was merely planning to invest alongside Oily Rock. The District Court did not abuse its discretion in excluding this proposed testimony."
"The District Court properly precluded Dresner’s testimony because it was not relevant. As the District Court stated, Dresner’s state of mind “has nothing to do with the defendant on trial.” Unlike other defense witnesses and Government witnesses who were present in Baku with Bourke to consider an investment in Oily Rock and therefore possessed relevant information regarding Bourke’s knowledge, Dresner had no contact with Bourke and was considering investing in Omega, not Oily Rock. Dresner never traveled to Azerbaijan to investigate the investment opportunity, relying instead on the recommendation of Omega. Dresner never met Kozeny, Farrell, or Bodmer — the individuals who discussed the FCPA violations with Bourke."
"In addition, Dresner’s testimony would not have been particularly helpful to Bourke, and therefore any error in excluding the testimony would have been harmless. Notwithstanding Dresner’s exclusion, Bourke offered evidence through several Government and defense witnesses that Columbia University had invested in the same project, and there was no suggestion in any of that testimony or in arguments that Columbia University was aware of bribes or was prosecuted. Thus, Bourke was able to establish that some investors in the Azerbaijani vouchers were not aware of the bribes. Had Dresner actually testified, he would have revealed that Columbia and Bourke were not similarly situated and that Columbia had much less information about the investment than Bourke did."
"In sum, the District Court acted within its discretion in excluding Dresner’s testimony, and this ruling does not warrant a new trial."
Bourke
The district court "refused to instruct that conviction for conspiracy requires the same mens rea as the underlying FCPA offense -- meaning (among other things) a bad purpose to disobey or disregard the law."
According to Bourke, "the district court compounded its error in giving the conscious avoidance instruction by rejecting [his] requested instruction [as to the conspiracy charge] that the government had to prove that he acted corruptly and willfully."
Bourke argued that "when the district court turned to the mens rea required for the conspiracy offense, rather than for a substantive FCPA offense, it omitted the requirement that the defendant act corruptly" and that this "watering-down of the mens rea requirement for the conspiracy charged [...] undermined [his] defense, which rested on his state of mind."
DOJ
"Bourke did not lodge this objection in this District Court, and therefore, this part of the charge is reviewed for plain error. The District Court’s mens rea instruction was correct and was certainly not plainly erroneous."
"The District Court instructed the jury on all the elements of a substantive FCPA violation, including the requirement that the defendant act “willfully” and “corruptly,” terms which the Court defined for the jury."
"The District Court’s charge encompassed the mens rea elements of the FCPA and was not plainly erroneous. The “word ‘corruptly’ in the FCPA signifies . . . a bad or wrongful purpose and an intent to influence a foreign official to misuse his official position. But there is nothing in the word or any thing else in the FCPA that indicates that the government must establish that the defendant in fact knew that his or her conduct violated the FCPA to be guilty.”
"The District Court’s extensive instructions on mens rea included the instruction that Bourke had to act “with the specific intention of furthering [the conspiracy’s] business or objective” and “for the purpose of furthering the illegal undertaking.” It is simply not possible to conspire to act corruptly without acting corruptly."
"Finally, Bourke failed to raise this highly abstract objection during any of the several conferences on the jury charge."
"Accordingly, the charge is subject to review only for plain error. There was no error, much less plain error, in this case."
Bourke
The district court "rejected Bourke's proposed good faith instructions, even though [he] produced ample evidence to warrant the instructions and no other instruction covered the point."
Bourke argued that his proposed instruction "accurately reflected the principle that a defendant's good faith belief that he acted lawfully negates the mens rea for specific intent offenses."
While Bourke concedes that his efforts to investigate the investment "were not as extensive" as others, his efforts "suffice for a good faith instruction." Because the case turned on his state of mind, Bourke states that "there is no doubt that the good faith defense, if accepted by the jury, would have produced an acquittal."
DOJ
"Bourke’s contention is without merit. A separate good faith instruction was not necessary in this case, as the relevant jury instructions effectively communicated the essence of a good faith defense in its discussion of the elements of knowledge and willfulness."
"Indeed, the District Court’s instructions that an FCPA violation required a defendant to act “with a bad purpose to disobey or disregard the law” and that the Government could not meet its burden of proof by showing that the defendant’s actions were the result of “mere negligence or some other innocent explanation” captured the concepts identified in Bourke’s proposed charge — that Bourke could not be convicted of Count One if he believed he “was acting properly in connection with the matters alleged in [Count One], even if he was mistaken in that belief, and even if others were injured by his conduct." [...] Thus, the good faith instructions Bourke requested were “effectively presented elsewhere in the charge.” Accordingly, the District Court’s decision not to deliver a separate good faith charge was appropriate and does not provide a basis for a new trial."
Bourke
"Any one of the errors concerning [his] knowledge of Kozeny's bribes and his specific criminal intent, standing alone, warrants reversal" and if any one error is harmless in isolation, then their "cumulative effect profoundly damaged [his] defense."
DOJ
"Bourke contends correctly that the cumulative effect of errors that are individually harmless can cast doubt upon the fairness of a conviction. For the reasons set forth above, there were no such errors. Accordingly, Bourke’s “cumulative effect” argument provides no basis for granting a new trial."
Monday, August 9, 2010
The Giffen Gaffe
Perhaps one day the true story will be told about the DOJ's prosecution of James Giffen.
I don't pretend to know what happened behind the scene other than to know that something significant occurred behind the scene.
That conclusion is compelled when an original indictment (see here) charging "Giffen with making more than $78 million in unlawful payments to two senior officials of the Republic of Kazakhstan in connection with six separate oil transactions, in which the American oil companies Mobil Oil, Amoco, Texaco and Phillips Petroleum acquired valuable oil and gas rights in Kazakhstan" is resolved via a one-paragraph superseding information (see here) charging a misdemeanor tax violation.
Sure, DOJ can say that it prosecuted a functionally defunct entity, The Mercator Corporation - in which Giffen was the principal shareholder, board chairman, and chief executive officer - with violating the FCPA's anti-bribery provisions. Yet that criminal information (see here) merely alleges that "Mercator caused the purchase of two snowmobiles that were shipped to Kazakhstan for delivery to KO-2" (a senior official of the Kazakh Government).
You read that correctly.
From an FCPA perspective this entire, nearly decade-long prosecution, was reduced to allegations about two snowmobiles for a Kazakh official.
So what was that something significant that occurred behind the scene?
I don't know.
But I do know this.
Part of Giffen's defense was that his actions were taken with the knowledge and support of the Central Intelligence Agency, the National Security Council, the Department of State and the White House. The DOJ did not dispute the fact that Giffen had frequent contacts with senior U.S. intelligence officials or that he used his ties within the Kazakh government to assist the United States. With the court's approval, Giffen sought discovery from the government to support such a public authority defense and much of the delay in the case was due to the government's resistance to such discovery and who was entitled to see such discovery.
Perhaps it was that public airing of the information in these documents would be embarrassing to the U.S. government or impact U.S. foreign relations with a key oil and gas producing country.
If so, it is troubling to think that our government condones bribery, when done with the approval or the wink and nod of government officials, while aggressively prosecuting commercial actors - often times based on untested and dubious legal theories.
For the record, Giffen pleaded guilty (see here) last Friday to a one-count criminal information charging him with willfully failing to supply information on tax returns regarding foreign bank accounts in violation of 26 USC 7203. The information charges, and Giffen pleaded guilty to, filing a U.S. individual income tax return which failed to report that he maintained an interest in, and signature and other authority over, a bank account in Switzerland in the name of Condor Capital Management, a British Virgin Islands corporation he controlled. In pleading guilty, Giffen also relinquished right, title and interest he may have had, directly or indirectly, in several named Swiss bank accounts.
Pursuant to the plea agreement, Giffen's sentencing range will be 0 to 6 months and the applicable fine range will be $250 to $5,000.
For the record, Mercator also pleaded guilty (see here) last Friday to a one-count criminal information charging it with violating the FCPA's anti-bribery provisions. According to the information, Mercator "advised Kazakhstan in connection with various transactions related to the sale by Kazakhstan of portions of its oil and gas wealth." The information alleges that between 1995 and 2000 Mercator was paid approximately $67 million in success fees for its work in assisting the Kazakh Ministry of Oil and Gas Industries develop a strategy for foreign investment in the oil and gas sector and coordinating the negotiation of numerous oil and gas transactions. The information charges that certain senior officials of the Kazakh government (including KO-2) had the authority to hire and pay Mercator and that Mercator was therefore "dependant upon the goodwill" of the officials. The one-paragraph statutory allegation merely states that Mercator "caused the purchase of two snowmobiles that were shipped to Kazakhstan for delivery to KO-2."
As indicated in the plea agreement, the DOJ and Mercator could not agree on whether the 1998 Sentencing Guidelines or the 2009 Sentencing Guidelines apply - an issue that will be left for the court to decide. If the 2009 guidelines apply, the plea agreement sets forth a fine range of $650,000 to $1.3 million. If the 1998 guidelines apply, the plea agreement sets forth a fine range of $30,000 to $60,000.
Whether Mercator's and/or Giffen's actions were indeed taken with the knowledge and support of the Central Intelligence Agency, the National Security Council, the Department of State and the White House, the following paragraph from the Mercator plea agreement would seem relevant:
"Because the offense involved an elected official or a public official in a high-level decision-making or sensitive position, the offense level is increased 4 levels pursuant to U.S.S.G. 2C1.1(b)(3)."
That provision (see here) defines "public official" to include, among other categories, an individual "in a position of public trust with official responsibility for carrying out a government program or policy; acts under color of law or official right; or participates so substantially in government operations as to possess de facto authority to make governmental decisions."
DOJ releases in FCPA enforcement actions are typically peppered with get-tough, this sends a message type of language. The release (see here) in the Giffen / Mercator enforcement action does not contain any quotes from DOJ officials.
William Schwartz of Cooley Godward Kronish LLP (here), a former Assistant United States Attorney in the United States Attorney's Office for the Southern District of New York where he was Deputy Chief of the Criminal Division, represented both Giffen and Mercator.
So, what to make of the Giffen Gaffe.
It seems that Giffen prevailed not because of the facts or the law, but because he possessed significant leverage over the government in that he asserted his actions were taken with the knowledge and support of the Central Intelligence Agency, the National Security Council, the State Department and the White House.
Few FCPA defendants can make a similar claim. Thus, resolution of the Giffen case would seem to have little or no effect on the nuts and bolts of future FCPA enforcement actions.
Yet, resolution of the Giffen case does raise some troubling issues as to the DOJ's enforcement of the Foreign Corrupt Practices Act.
For starters, the Giffen case and the Frederick Bourke case (see here for prior posts) generally marked the beginning of the FCPA's resurgence. Regardless of the outcome of Bourke's Second Circuit appeal, the trial phase ended with the sentencing judge saying:
“After years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.”
In both the Giffen and Bourke cases, the DOJ made spectacular allegations only to see these enforcement actions end with a whimper.
The Giffen resolution would also seem embarrassing for the Justice Department which actively preaches the transparency and anti-corruption gospel message around the world while calling on other countries to increase enforcement of their own bribery laws.
However, what does it say about transparency in our country when a case that begins with criminal allegations of more than $78 million in unlawful payments to senior Kazakh officials ends with a misdemeanor tax violation and a largely meaningless FCPA enforcement action against a functionally defunct entity focused merely on two snowmobiles?
The Giffen resolution should further enrage segments of the business community that justifiably see a double standard in that certain business practices seem tolerated when done in connection with government business or policy, yet aggressively prosecuted, often times based on untested and dubious legal theories, when done in connection with a purely commercial transaction.
The Giffen Gaffe is troubling enough in isolation.
Coupled with another bribery blunder from approximately six months ago, it is an open question whether the government's enforcement of the FCPA, to borrow a parliamentary phrase, would survive a no-confidence vote.
In February, the DOJ alleged (see here) that BAE, the largest defense contractor in Europe and the fifth largest in the U.S. as measured by sales, "provided substantial benefits" "through various payment mechanisms both in the territorial jurisdiction of the U.S. and elsewhere" to a Saudi official "in a position of influence" to award fighter jet deals. The DOJ stated that BAE "provided support services to the [Saudi official] while in the territory of the U.S.” and that these benefits “included the purchase of travel and accommodations, security services, real estate, automobiles and personal items.” The DOJ alleged that over $5 million in invoices for benefits provided to the Saudi official were submitted by just one BAE employee during a one year period. Yet resolution of the BAE enforcement action contained no FCPA charges.
Sure the U.S. may prosecute the most bribery cases in terms of shear numbers compared to other countries.
Yet, as is becoming increasingly obvious, many of those cases are settled via privately negotiated resolution vehicles that are not subjected to any meaningful judicial scrutiny and are based on dubious and untested legal theories.
On the flip side, when allegations of egregious or widespread bribery are alleged, the charges are not even FCPA anti-bribery violations.
Before another U.S. government official goes abroad to spread the anti-corruption gospel, preach transparency, and question other countries commitment to prosecuting bribery, it would seem that our government and Justice Department first need to examine its own enforcement of the FCPA.
I don't pretend to know what happened behind the scene other than to know that something significant occurred behind the scene.
That conclusion is compelled when an original indictment (see here) charging "Giffen with making more than $78 million in unlawful payments to two senior officials of the Republic of Kazakhstan in connection with six separate oil transactions, in which the American oil companies Mobil Oil, Amoco, Texaco and Phillips Petroleum acquired valuable oil and gas rights in Kazakhstan" is resolved via a one-paragraph superseding information (see here) charging a misdemeanor tax violation.
Sure, DOJ can say that it prosecuted a functionally defunct entity, The Mercator Corporation - in which Giffen was the principal shareholder, board chairman, and chief executive officer - with violating the FCPA's anti-bribery provisions. Yet that criminal information (see here) merely alleges that "Mercator caused the purchase of two snowmobiles that were shipped to Kazakhstan for delivery to KO-2" (a senior official of the Kazakh Government).
You read that correctly.
From an FCPA perspective this entire, nearly decade-long prosecution, was reduced to allegations about two snowmobiles for a Kazakh official.
So what was that something significant that occurred behind the scene?
I don't know.
But I do know this.
Part of Giffen's defense was that his actions were taken with the knowledge and support of the Central Intelligence Agency, the National Security Council, the Department of State and the White House. The DOJ did not dispute the fact that Giffen had frequent contacts with senior U.S. intelligence officials or that he used his ties within the Kazakh government to assist the United States. With the court's approval, Giffen sought discovery from the government to support such a public authority defense and much of the delay in the case was due to the government's resistance to such discovery and who was entitled to see such discovery.
Perhaps it was that public airing of the information in these documents would be embarrassing to the U.S. government or impact U.S. foreign relations with a key oil and gas producing country.
If so, it is troubling to think that our government condones bribery, when done with the approval or the wink and nod of government officials, while aggressively prosecuting commercial actors - often times based on untested and dubious legal theories.
For the record, Giffen pleaded guilty (see here) last Friday to a one-count criminal information charging him with willfully failing to supply information on tax returns regarding foreign bank accounts in violation of 26 USC 7203. The information charges, and Giffen pleaded guilty to, filing a U.S. individual income tax return which failed to report that he maintained an interest in, and signature and other authority over, a bank account in Switzerland in the name of Condor Capital Management, a British Virgin Islands corporation he controlled. In pleading guilty, Giffen also relinquished right, title and interest he may have had, directly or indirectly, in several named Swiss bank accounts.
Pursuant to the plea agreement, Giffen's sentencing range will be 0 to 6 months and the applicable fine range will be $250 to $5,000.
For the record, Mercator also pleaded guilty (see here) last Friday to a one-count criminal information charging it with violating the FCPA's anti-bribery provisions. According to the information, Mercator "advised Kazakhstan in connection with various transactions related to the sale by Kazakhstan of portions of its oil and gas wealth." The information alleges that between 1995 and 2000 Mercator was paid approximately $67 million in success fees for its work in assisting the Kazakh Ministry of Oil and Gas Industries develop a strategy for foreign investment in the oil and gas sector and coordinating the negotiation of numerous oil and gas transactions. The information charges that certain senior officials of the Kazakh government (including KO-2) had the authority to hire and pay Mercator and that Mercator was therefore "dependant upon the goodwill" of the officials. The one-paragraph statutory allegation merely states that Mercator "caused the purchase of two snowmobiles that were shipped to Kazakhstan for delivery to KO-2."
As indicated in the plea agreement, the DOJ and Mercator could not agree on whether the 1998 Sentencing Guidelines or the 2009 Sentencing Guidelines apply - an issue that will be left for the court to decide. If the 2009 guidelines apply, the plea agreement sets forth a fine range of $650,000 to $1.3 million. If the 1998 guidelines apply, the plea agreement sets forth a fine range of $30,000 to $60,000.
Whether Mercator's and/or Giffen's actions were indeed taken with the knowledge and support of the Central Intelligence Agency, the National Security Council, the Department of State and the White House, the following paragraph from the Mercator plea agreement would seem relevant:
"Because the offense involved an elected official or a public official in a high-level decision-making or sensitive position, the offense level is increased 4 levels pursuant to U.S.S.G. 2C1.1(b)(3)."
That provision (see here) defines "public official" to include, among other categories, an individual "in a position of public trust with official responsibility for carrying out a government program or policy; acts under color of law or official right; or participates so substantially in government operations as to possess de facto authority to make governmental decisions."
DOJ releases in FCPA enforcement actions are typically peppered with get-tough, this sends a message type of language. The release (see here) in the Giffen / Mercator enforcement action does not contain any quotes from DOJ officials.
William Schwartz of Cooley Godward Kronish LLP (here), a former Assistant United States Attorney in the United States Attorney's Office for the Southern District of New York where he was Deputy Chief of the Criminal Division, represented both Giffen and Mercator.
So, what to make of the Giffen Gaffe.
It seems that Giffen prevailed not because of the facts or the law, but because he possessed significant leverage over the government in that he asserted his actions were taken with the knowledge and support of the Central Intelligence Agency, the National Security Council, the State Department and the White House.
Few FCPA defendants can make a similar claim. Thus, resolution of the Giffen case would seem to have little or no effect on the nuts and bolts of future FCPA enforcement actions.
Yet, resolution of the Giffen case does raise some troubling issues as to the DOJ's enforcement of the Foreign Corrupt Practices Act.
For starters, the Giffen case and the Frederick Bourke case (see here for prior posts) generally marked the beginning of the FCPA's resurgence. Regardless of the outcome of Bourke's Second Circuit appeal, the trial phase ended with the sentencing judge saying:
“After years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.”
In both the Giffen and Bourke cases, the DOJ made spectacular allegations only to see these enforcement actions end with a whimper.
The Giffen resolution would also seem embarrassing for the Justice Department which actively preaches the transparency and anti-corruption gospel message around the world while calling on other countries to increase enforcement of their own bribery laws.
However, what does it say about transparency in our country when a case that begins with criminal allegations of more than $78 million in unlawful payments to senior Kazakh officials ends with a misdemeanor tax violation and a largely meaningless FCPA enforcement action against a functionally defunct entity focused merely on two snowmobiles?
The Giffen resolution should further enrage segments of the business community that justifiably see a double standard in that certain business practices seem tolerated when done in connection with government business or policy, yet aggressively prosecuted, often times based on untested and dubious legal theories, when done in connection with a purely commercial transaction.
The Giffen Gaffe is troubling enough in isolation.
Coupled with another bribery blunder from approximately six months ago, it is an open question whether the government's enforcement of the FCPA, to borrow a parliamentary phrase, would survive a no-confidence vote.
In February, the DOJ alleged (see here) that BAE, the largest defense contractor in Europe and the fifth largest in the U.S. as measured by sales, "provided substantial benefits" "through various payment mechanisms both in the territorial jurisdiction of the U.S. and elsewhere" to a Saudi official "in a position of influence" to award fighter jet deals. The DOJ stated that BAE "provided support services to the [Saudi official] while in the territory of the U.S.” and that these benefits “included the purchase of travel and accommodations, security services, real estate, automobiles and personal items.” The DOJ alleged that over $5 million in invoices for benefits provided to the Saudi official were submitted by just one BAE employee during a one year period. Yet resolution of the BAE enforcement action contained no FCPA charges.
Sure the U.S. may prosecute the most bribery cases in terms of shear numbers compared to other countries.
Yet, as is becoming increasingly obvious, many of those cases are settled via privately negotiated resolution vehicles that are not subjected to any meaningful judicial scrutiny and are based on dubious and untested legal theories.
On the flip side, when allegations of egregious or widespread bribery are alleged, the charges are not even FCPA anti-bribery violations.
Before another U.S. government official goes abroad to spread the anti-corruption gospel, preach transparency, and question other countries commitment to prosecuting bribery, it would seem that our government and Justice Department first need to examine its own enforcement of the FCPA.
Monday, April 26, 2010
Bourke's Appeal
As previously noted (here), the Frederic Bourke case is arguably the most complex and convoluted case in the history of the FCPA.
The trial court portion of the case ended in November 2009 when Judge Scheindin sentenced Bourke to 366 days for, among other things, conspiracy to violate the FCPA. At sentencing Judge Scheindin stated - “After years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.”
Bourke has appealed his conviction to the Second Circuit.
An FCPA trial like Bourke's is rare. An FCPA appeal is even more rare. An FCPA appeal to the influential Second Circuit is even more rare.
Thus, with good reason, this case is of great interest to those who follow the FCPA in that it is hoped to shed some light on the FCPA's knowledge element, and perhaps other issues as well.
First step in the appeal is Bourke's brief (see here) filed April 1st. The brief principally focuses on the FCPA's knowledge element, including the trial court's conscious avoidance jury instruction (a portion of the brief is redacted and a portion deals with Bourke's false statement conviction).
This post summarizes the FCPA related issues in Bourke's brief.
*****
According to the brief, the "trial focused on two related issues: whether Bourke knew that Kozeny was bribing the Azeris, and whether he willfully and corruptly joined the bribery conspiracy."
The brief argues that the district court "committed a series of errors that crippled Bourke's mens rea defense."
The brief then discusses three such errors.
"First, the court instructed on conscious avoidance, despite the absence of evidence that Bourke deliberately avoided knowledge of Kozeny's bribes." According to the brief, this instruction was error "because there was no evidence that Bourke deliberately avoided learning about Kozeny's bribery." The brief states that the conscious avoidance instruction "was particularly damaging because the government presented evidence and argued that Bourke failed to exercise adequate due diligence, thus exacerbating the risk inherent in the conscious avoidance instruction that the jury would convict for negligence or recklessness." The brief cites Second Circuit case law which emphasizes that "essential to the concept of conscious avoidance is the requirement that the defendant be shown to have decided not to learn the key fact, not merely to have failed to learn it through negligence" and argues that "the trial record contains no evidence that Bourke decided not to learn about Kozeny's bribery."
Bourke also argues that the court erred in admitting testimony about the due diligence performed by Texas Pacific Group ("TPG"), an investment fund that did not make the same investment as Bourke, because its lawyers advised of the FCPA risk. The brief states, "[b]ecause Bourke knew nothing about their work, their testimony was irrelevant to his state of mind" particularly since the results were never shared or communicated with Bourke. According to the brief, "the government offered the testimony [...] solely as a contrast with the comparatively skimpy inquiry that Bourke and his lawyers performed." "That testimony" according to the brief, "increased the risk, created by the conscious avoidance instruction and heightened by the government's closing, that the jury would convict Bourke based on his negligence or recklessness -- what he should have known, rather than what he actually knew." The brief argues that the "government's tactic had its intended effect on the jury" and it cites the foreman of the of jury telling the press, "It was Kozeny, it was Azerbaijan, it was a foreign country .... We thought he knew and definitely could have known. He's an investor. It's his job to know."
The brief further argues that, having admitted the above testimony relating to TPG, "the district court should at least have permitted Bourke to present the contrasting testimony" of the head of investments for Columbia University that would have established that "Columbia invested $15 million with Kozeny in Azeri privatization after due diligence comparable to Bourke's." According to the brief, this excluded testimony "would have rebutted the government's claim that Bourke's lack of due diligence compared to TPG established his culpability." The brief argues that "once the district court permitted the government to present TPG's due diligence as a benchmark for measuring Bourke's inquiry, fairness demanded that Bourke be allowed to present the contrasting picture of Columbia's due diligence, which resembled his own."
Second, the brief states - "the court refused to instruct that conviction for conspiracy requires the same mens rea as the underlying FCPA offense -- meaning (among other things) a bad purpose to disobey or disregard the law." According to the brief, "the district court compounded its error in giving the conscious avoidance instruction by rejecting Bourke's requested instruction [as to the conspiracy charge] that the government had to prove that he acted corruptly and willfully." The brief argues that "when the district court turned to the mens rea required for the conspiracy offense, rather than for a substantive FCPA offense, it omitted the requirement that the defendant act corruptly" and that this "watering-down of the mens rea requirement for the conspiracy charged [...] undermined Bourke's defense, which rested on his state of mind."
"Third, the court rejected Bourke's proposed good faith instructions, even though Bourke produced ample evidence to warrant the instructions and no other instruction covered the point." The brief argues that Bourke's proposed instruction "accurately reflected the principle that a defendant's good faith belief that he acted lawfully negates the mens rea for specific intent offenses." While the brief concedes that Bourke's efforts to investigate the investment "were not as extensive" as others, his efforts "suffice for a good faith instruction." Because the case turned on Bourke's state of mind, the brief states "there is no doubt that the good faith defense, if accepted by the jury, would have produced an acquittal."
The brief argues that "any one of the errors concerning Bourke's knowledge of Kozeny's bribes and his specific criminal intent, standing alone, warrants reversal" and if any one error is harmless in isolation, then their "cumulative effect profoundly damaged Bourke's defense."
Next up ... the DOJ which has until July 29th to file its response brief.
The trial court portion of the case ended in November 2009 when Judge Scheindin sentenced Bourke to 366 days for, among other things, conspiracy to violate the FCPA. At sentencing Judge Scheindin stated - “After years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.”
Bourke has appealed his conviction to the Second Circuit.
An FCPA trial like Bourke's is rare. An FCPA appeal is even more rare. An FCPA appeal to the influential Second Circuit is even more rare.
Thus, with good reason, this case is of great interest to those who follow the FCPA in that it is hoped to shed some light on the FCPA's knowledge element, and perhaps other issues as well.
First step in the appeal is Bourke's brief (see here) filed April 1st. The brief principally focuses on the FCPA's knowledge element, including the trial court's conscious avoidance jury instruction (a portion of the brief is redacted and a portion deals with Bourke's false statement conviction).
This post summarizes the FCPA related issues in Bourke's brief.
*****
According to the brief, the "trial focused on two related issues: whether Bourke knew that Kozeny was bribing the Azeris, and whether he willfully and corruptly joined the bribery conspiracy."
The brief argues that the district court "committed a series of errors that crippled Bourke's mens rea defense."
The brief then discusses three such errors.
"First, the court instructed on conscious avoidance, despite the absence of evidence that Bourke deliberately avoided knowledge of Kozeny's bribes." According to the brief, this instruction was error "because there was no evidence that Bourke deliberately avoided learning about Kozeny's bribery." The brief states that the conscious avoidance instruction "was particularly damaging because the government presented evidence and argued that Bourke failed to exercise adequate due diligence, thus exacerbating the risk inherent in the conscious avoidance instruction that the jury would convict for negligence or recklessness." The brief cites Second Circuit case law which emphasizes that "essential to the concept of conscious avoidance is the requirement that the defendant be shown to have decided not to learn the key fact, not merely to have failed to learn it through negligence" and argues that "the trial record contains no evidence that Bourke decided not to learn about Kozeny's bribery."
Bourke also argues that the court erred in admitting testimony about the due diligence performed by Texas Pacific Group ("TPG"), an investment fund that did not make the same investment as Bourke, because its lawyers advised of the FCPA risk. The brief states, "[b]ecause Bourke knew nothing about their work, their testimony was irrelevant to his state of mind" particularly since the results were never shared or communicated with Bourke. According to the brief, "the government offered the testimony [...] solely as a contrast with the comparatively skimpy inquiry that Bourke and his lawyers performed." "That testimony" according to the brief, "increased the risk, created by the conscious avoidance instruction and heightened by the government's closing, that the jury would convict Bourke based on his negligence or recklessness -- what he should have known, rather than what he actually knew." The brief argues that the "government's tactic had its intended effect on the jury" and it cites the foreman of the of jury telling the press, "It was Kozeny, it was Azerbaijan, it was a foreign country .... We thought he knew and definitely could have known. He's an investor. It's his job to know."
The brief further argues that, having admitted the above testimony relating to TPG, "the district court should at least have permitted Bourke to present the contrasting testimony" of the head of investments for Columbia University that would have established that "Columbia invested $15 million with Kozeny in Azeri privatization after due diligence comparable to Bourke's." According to the brief, this excluded testimony "would have rebutted the government's claim that Bourke's lack of due diligence compared to TPG established his culpability." The brief argues that "once the district court permitted the government to present TPG's due diligence as a benchmark for measuring Bourke's inquiry, fairness demanded that Bourke be allowed to present the contrasting picture of Columbia's due diligence, which resembled his own."
Second, the brief states - "the court refused to instruct that conviction for conspiracy requires the same mens rea as the underlying FCPA offense -- meaning (among other things) a bad purpose to disobey or disregard the law." According to the brief, "the district court compounded its error in giving the conscious avoidance instruction by rejecting Bourke's requested instruction [as to the conspiracy charge] that the government had to prove that he acted corruptly and willfully." The brief argues that "when the district court turned to the mens rea required for the conspiracy offense, rather than for a substantive FCPA offense, it omitted the requirement that the defendant act corruptly" and that this "watering-down of the mens rea requirement for the conspiracy charged [...] undermined Bourke's defense, which rested on his state of mind."
"Third, the court rejected Bourke's proposed good faith instructions, even though Bourke produced ample evidence to warrant the instructions and no other instruction covered the point." The brief argues that Bourke's proposed instruction "accurately reflected the principle that a defendant's good faith belief that he acted lawfully negates the mens rea for specific intent offenses." While the brief concedes that Bourke's efforts to investigate the investment "were not as extensive" as others, his efforts "suffice for a good faith instruction." Because the case turned on Bourke's state of mind, the brief states "there is no doubt that the good faith defense, if accepted by the jury, would have produced an acquittal."
The brief argues that "any one of the errors concerning Bourke's knowledge of Kozeny's bribes and his specific criminal intent, standing alone, warrants reversal" and if any one error is harmless in isolation, then their "cumulative effect profoundly damaged Bourke's defense."
Next up ... the DOJ which has until July 29th to file its response brief.
Thursday, April 22, 2010
Quiz Time Answer
In a prior post (here), I noted that in 2009 there were three FCPA trials - Frederic Bourke, William Jefferson, and Gerald and Patricia Green.
I then posted the question - what is the common thread in these three FCPA enforcement actions - a fact which speaks to the great difficulty individual FCPA defendants generally have in mounting a legal defense?
Before the answer, the background.
Individual FCPA defendants tend to work for companies. Under respondeat superior theories of liability, the company is going to have a very difficult time "distancing" itself from its employees conduct.
Thus, all corporate FCPA enforcement actions tend to be resolved through a non-prosecution agreement, a deferred prosecution agreement, or a plea. Entering into one of these resolution vehicles is often easier, more cost efficient, and more certain than actually mounting a legal defense based on the FCPA's statutory elements. Further, because these resolution vehicles are subject to little or no judicial scrutiny and are entered into the context of the DOJ possessing certain "carrots" and "sticks" they do not necessarily reflect the triumph of one party's legal position over the other.
While these resolution vehicles may indeed avert "another Arthur Anderson" here is the problem.
A key feature of each resolution vehicle is a statement along the following lines:
"[company] admits, accepts, and acknowledges responsibility for the conduct set forth in [the statement of facts] and agrees not to make any public statement contradicting [the statement of facts]" (see UTStarcom NPA here);
"[company] admits, accepts and acknowledges that it is responsible for the acts of its officers, employees and agents as set forth in the Statement of Facts [...] and that the facts described [...] are true and accurate [...] and that should the DOJ initiate prosecution that is deferred by this agreement [company] agrees that it will neither contest the admissibility of, nor contradict, in any such proceeding, the Statement of Facts" (see AGA Medical DPA here); or
"Defendant admits,agrees and stipulates that the factual allegations set forth in the Statement of Facts [...] are true and correct, that it is responsible for the acts of its former officers and employees described in the Statement of Facts, and that the Statement of Facts accurately reflects CCI’s criminal conduct" (see Control Components Inc. Plea Agreement here).
So what can you do if you are the targeted employee of such a company?
More likely than not, your employee has already terminated you (even before all the facts may be known) to demonstrate to the DOJ that it is implementing "prompt remedial actions" - a factor DOJ will consider when making its charging decision (see here).
Then, because of the resolution vehicle your employer entered into to make the DOJ go away, you are stuck with your employer admitting and accepting responsibility for your misconduct, even though there has been no finding that your conduct was even misconduct.
Against this backdrop, it is no surprise that nearly all FCPA individual defendants plead. What choice do they really have?
So that brings us back to the quiz answer.
Perhaps it was pure coincidence, perhaps not, but the three individual FCPA trials all occurred in the context of there being no parallel NPA, DPA or plea with a corporate entity.
I then posted the question - what is the common thread in these three FCPA enforcement actions - a fact which speaks to the great difficulty individual FCPA defendants generally have in mounting a legal defense?
Before the answer, the background.
Individual FCPA defendants tend to work for companies. Under respondeat superior theories of liability, the company is going to have a very difficult time "distancing" itself from its employees conduct.
Thus, all corporate FCPA enforcement actions tend to be resolved through a non-prosecution agreement, a deferred prosecution agreement, or a plea. Entering into one of these resolution vehicles is often easier, more cost efficient, and more certain than actually mounting a legal defense based on the FCPA's statutory elements. Further, because these resolution vehicles are subject to little or no judicial scrutiny and are entered into the context of the DOJ possessing certain "carrots" and "sticks" they do not necessarily reflect the triumph of one party's legal position over the other.
While these resolution vehicles may indeed avert "another Arthur Anderson" here is the problem.
A key feature of each resolution vehicle is a statement along the following lines:
"[company] admits, accepts, and acknowledges responsibility for the conduct set forth in [the statement of facts] and agrees not to make any public statement contradicting [the statement of facts]" (see UTStarcom NPA here);
"[company] admits, accepts and acknowledges that it is responsible for the acts of its officers, employees and agents as set forth in the Statement of Facts [...] and that the facts described [...] are true and accurate [...] and that should the DOJ initiate prosecution that is deferred by this agreement [company] agrees that it will neither contest the admissibility of, nor contradict, in any such proceeding, the Statement of Facts" (see AGA Medical DPA here); or
"Defendant admits,agrees and stipulates that the factual allegations set forth in the Statement of Facts [...] are true and correct, that it is responsible for the acts of its former officers and employees described in the Statement of Facts, and that the Statement of Facts accurately reflects CCI’s criminal conduct" (see Control Components Inc. Plea Agreement here).
So what can you do if you are the targeted employee of such a company?
More likely than not, your employee has already terminated you (even before all the facts may be known) to demonstrate to the DOJ that it is implementing "prompt remedial actions" - a factor DOJ will consider when making its charging decision (see here).
Then, because of the resolution vehicle your employer entered into to make the DOJ go away, you are stuck with your employer admitting and accepting responsibility for your misconduct, even though there has been no finding that your conduct was even misconduct.
Against this backdrop, it is no surprise that nearly all FCPA individual defendants plead. What choice do they really have?
So that brings us back to the quiz answer.
Perhaps it was pure coincidence, perhaps not, but the three individual FCPA trials all occurred in the context of there being no parallel NPA, DPA or plea with a corporate entity.
Friday, January 29, 2010
Potpourri
A Friday roundup of recent FCPA events.
An FCPA Sentencing Trend?
As noted in yesterday's DOJ release (here), two former executives of Willbros International Inc. (a subsidiary of Houston-based Willbros Group Inc.) were sentenced for their roles in a conspiracy to make improper payments to "foreign officials" in Nigeria and Ecuador.
Jason Edward Steph was sentenced to 15 months in prison and Jim Bob Brown was sentenced to 366 days in prison.
For more on the Willbros matter, see here and here.
The DOJ's sentencing recommendations appear to be sealed, but one can assume, given the "light" sentences, that perhaps the DOJ likely sought sentences greater than those issued by District Court Judge Simeon Lake.
If so, this would appear to continue a trend of judges sentencing FCPA defendants to prison sentences less than those recommended by DOJ.
For instance, in Frederic Bourke case, a case which involved a "massive bribery scheme" according to DOJ, Judge Shira Scheindin rejected the 10-year prison sentence proposed by DOJ and sentenced Bourke to 366 days in prison. (see here). In sentencing Bourke, Judge Scheindin is reported to have said "after years of supervising this case, it's still not entirely clear to me whether Mr. Bourke is a victim or a crok or a little bit of both."
With several FCPA sentencing dates on the horizon, this apparent trend will be an issue to watch.
See here for local media coverage regarding the sentences.
Kozeny's Tan Not in Jeopardy
While Bourke (see here) prepares his appeal, Viktor Kozeny, the alleged master-mind of the scheme to bribe officials in Azerbaijan in connection with privatization of the state-owned oil company, will be staying put in The Bahamas as an appellate court again rejected DOJ's extradition attempts.
As noted in the recent Bahamian Court of Appeals decision (here), Kozeny, a Czech national, has been living in The Bahamas since 1995 and has not departed the country since 1999.
The opinion notes that there is no dispute "that there was a conspiracy to corrupt the Azeri officials and that such officials were paid money, given gifts and provided shares in certain companies under the control of [Kozeny] without payment; and had certain medical procedures paid for them by [Kozeny].
Even so, the court concluded that while The Bahamas did indeed have a bribery/corruption statute, it applied only to bribes within The Bahamas or given to a Bahamian public officer. Thus, because Kozeny's conduct would not violate Bahamian law, the appellate court upheld the lower court's denial of the extradition request.
For additional coverage (see here and here and here).
According to these reports, the decision may be appealed to London's Privy Council pursuant to Bahamian legal procedure. Kozeny's U.S. lawyer is quoted as saying "enough is enough" and U.S. prosecutors should finally accept the fact that Kozney, a non-U.S. citizen, could not violate the FCPA as it existed in 1998 - the year in which the bribe scheme perhaps ended - although, as noted in the opinion, the U.S. alleges that the bribe scheme continued into 1999.
Why is this relevant?
Because the FCPA was amended in 1998 to include, among other provisions, 78dd-3 which applies the antibribery provisions to "any person" (i.e. foreigners) "while in the territory of the U.S." from making use of the mails or any other means or instrumentality of interstate commerce in furtherance of an improper payment.
The SFO Continues to "Step-It-Up"
Today, the U.K. Serious Fraud Office (the functional equivalent of the DOJ) issued a release (here) indicating that a former BAE agent has been charged with "conspiracy to corrupt" for "conspiring with others to give or agree to give corrupt payments [...] to unknown officials and other agents of certain Eastern and Central European governments, including the Czech Republic, Hungary and Austria as inducements to secure, or as rewards for having secured, contracts from those governments for the supply of goods to them, namely SAAB/Gripen fighter jets, by BAE Systems Plc."
For local media coverage of the charges (see here).
With a new Bribery Bill expected in the U.K. by years end, the SFO continues to "step-it-up" (see here for more on the SFO).
Disclosing FCPA Compliance
Public companies dislose FCPA issues all the time. Rarely though do the disclosures concern issues other than internal investigations and potential enforcement actions.
Accordingly, two recent SEC filings caught my eye.
China MediaExpress Holdings, Inc. (a Delaware company) recently disclosed (here) that it:
"[e]ntered into a securities purchase agreement with Starr Investments Cayman II, Inc. Under this agreement, Starr will, subject to various terms and conditions, purchase from the Company 1,000,000 shares of Series A Convertible Preferred Stock and warrants to purchase 1,545,455 shares of the Common Stock of the Company for an aggregate purchase price of US$30,000,000."
One of the conditions was that the company "shall have adopted a program with respect to compliance with the US Foreign Corrupt Practices Act" and a post-closing covenant obligates the company to "implement a program regarding compliance with the US Foreign Corrupt Practices Act not later than April 30, 2010."
Cardtronics Inc. (an operator of ATM networks around the world) (here) recently disclosed (here) that:
"On January 25, 2010, the Board of Directors by unanimous vote approved three management proposed modifications to the Company’s Code of Business Conduct and Ethics. The modifications as approved by the Board include: (i) adding a section that addressed compliance with the Foreign Corrupt Practices Act and International Anti-Bribery and Fair Competition Act of 1998."
Costa Rica Joins the Club
Last, but certainly not least, Costa Rica recently announced a first ... the first time a foreign corporation has paid the government damages for corruption.
As noted here, telecom company Alcatel-Lucent recently disclosed a $10 million payment to settle a corruption case in Costa Rica in which it was accused of paying kicbacks to former Costa Rican President Miguel Angel Rodriguez (and others government officials) in return for a 2001 contract worth $149 million.
There has been FCPA/corruption issues on both sides "of the hyphen" as noted here in this recent Main Justice article.
And with that, have a nice weekend.
An FCPA Sentencing Trend?
As noted in yesterday's DOJ release (here), two former executives of Willbros International Inc. (a subsidiary of Houston-based Willbros Group Inc.) were sentenced for their roles in a conspiracy to make improper payments to "foreign officials" in Nigeria and Ecuador.
Jason Edward Steph was sentenced to 15 months in prison and Jim Bob Brown was sentenced to 366 days in prison.
For more on the Willbros matter, see here and here.
The DOJ's sentencing recommendations appear to be sealed, but one can assume, given the "light" sentences, that perhaps the DOJ likely sought sentences greater than those issued by District Court Judge Simeon Lake.
If so, this would appear to continue a trend of judges sentencing FCPA defendants to prison sentences less than those recommended by DOJ.
For instance, in Frederic Bourke case, a case which involved a "massive bribery scheme" according to DOJ, Judge Shira Scheindin rejected the 10-year prison sentence proposed by DOJ and sentenced Bourke to 366 days in prison. (see here). In sentencing Bourke, Judge Scheindin is reported to have said "after years of supervising this case, it's still not entirely clear to me whether Mr. Bourke is a victim or a crok or a little bit of both."
With several FCPA sentencing dates on the horizon, this apparent trend will be an issue to watch.
See here for local media coverage regarding the sentences.
Kozeny's Tan Not in Jeopardy
While Bourke (see here) prepares his appeal, Viktor Kozeny, the alleged master-mind of the scheme to bribe officials in Azerbaijan in connection with privatization of the state-owned oil company, will be staying put in The Bahamas as an appellate court again rejected DOJ's extradition attempts.
As noted in the recent Bahamian Court of Appeals decision (here), Kozeny, a Czech national, has been living in The Bahamas since 1995 and has not departed the country since 1999.
The opinion notes that there is no dispute "that there was a conspiracy to corrupt the Azeri officials and that such officials were paid money, given gifts and provided shares in certain companies under the control of [Kozeny] without payment; and had certain medical procedures paid for them by [Kozeny].
Even so, the court concluded that while The Bahamas did indeed have a bribery/corruption statute, it applied only to bribes within The Bahamas or given to a Bahamian public officer. Thus, because Kozeny's conduct would not violate Bahamian law, the appellate court upheld the lower court's denial of the extradition request.
For additional coverage (see here and here and here).
According to these reports, the decision may be appealed to London's Privy Council pursuant to Bahamian legal procedure. Kozeny's U.S. lawyer is quoted as saying "enough is enough" and U.S. prosecutors should finally accept the fact that Kozney, a non-U.S. citizen, could not violate the FCPA as it existed in 1998 - the year in which the bribe scheme perhaps ended - although, as noted in the opinion, the U.S. alleges that the bribe scheme continued into 1999.
Why is this relevant?
Because the FCPA was amended in 1998 to include, among other provisions, 78dd-3 which applies the antibribery provisions to "any person" (i.e. foreigners) "while in the territory of the U.S." from making use of the mails or any other means or instrumentality of interstate commerce in furtherance of an improper payment.
The SFO Continues to "Step-It-Up"
Today, the U.K. Serious Fraud Office (the functional equivalent of the DOJ) issued a release (here) indicating that a former BAE agent has been charged with "conspiracy to corrupt" for "conspiring with others to give or agree to give corrupt payments [...] to unknown officials and other agents of certain Eastern and Central European governments, including the Czech Republic, Hungary and Austria as inducements to secure, or as rewards for having secured, contracts from those governments for the supply of goods to them, namely SAAB/Gripen fighter jets, by BAE Systems Plc."
For local media coverage of the charges (see here).
With a new Bribery Bill expected in the U.K. by years end, the SFO continues to "step-it-up" (see here for more on the SFO).
Disclosing FCPA Compliance
Public companies dislose FCPA issues all the time. Rarely though do the disclosures concern issues other than internal investigations and potential enforcement actions.
Accordingly, two recent SEC filings caught my eye.
China MediaExpress Holdings, Inc. (a Delaware company) recently disclosed (here) that it:
"[e]ntered into a securities purchase agreement with Starr Investments Cayman II, Inc. Under this agreement, Starr will, subject to various terms and conditions, purchase from the Company 1,000,000 shares of Series A Convertible Preferred Stock and warrants to purchase 1,545,455 shares of the Common Stock of the Company for an aggregate purchase price of US$30,000,000."
One of the conditions was that the company "shall have adopted a program with respect to compliance with the US Foreign Corrupt Practices Act" and a post-closing covenant obligates the company to "implement a program regarding compliance with the US Foreign Corrupt Practices Act not later than April 30, 2010."
Cardtronics Inc. (an operator of ATM networks around the world) (here) recently disclosed (here) that:
"On January 25, 2010, the Board of Directors by unanimous vote approved three management proposed modifications to the Company’s Code of Business Conduct and Ethics. The modifications as approved by the Board include: (i) adding a section that addressed compliance with the Foreign Corrupt Practices Act and International Anti-Bribery and Fair Competition Act of 1998."
Costa Rica Joins the Club
Last, but certainly not least, Costa Rica recently announced a first ... the first time a foreign corporation has paid the government damages for corruption.
As noted here, telecom company Alcatel-Lucent recently disclosed a $10 million payment to settle a corruption case in Costa Rica in which it was accused of paying kicbacks to former Costa Rican President Miguel Angel Rodriguez (and others government officials) in return for a 2001 contract worth $149 million.
There has been FCPA/corruption issues on both sides "of the hyphen" as noted here in this recent Main Justice article.
And with that, have a nice weekend.
Tuesday, November 10, 2009
366 Days
After a nearly decade long investigation which spanned the globe, dismissal of FCPA substantive charges on statute of limitations grounds, reinstatement of the FCPA substantive charges, a superseding indictment which then dropped the FCPA substantive charges in exchange for "only" conspiracy to violate the FCPA, and a six week jury trial this past summer, the DOJ finally extracted its "pound of flesh" from Frederic Bourke.
As has been widely reported, this afternoon Judge Shira Scheindin (S.D.N.Y.) sentenced Bourke to a year and a day in federal prison (followed by three years probation) and ordered him to pay $1 million fine. The DOJ sought a 10 year prison sentence. The DOJ release announcing the sentence is presumably forthcoming.
Bourke who? What's this about?
To those of you wading into the details of this case for the first time or only recently, you will be well served by reading Andrew Longstreth's superb piece which recently appeared in the American Lawyer (see here).
Bourke was convicted in July by a jury for conspiring to pay bribes to Azerbaijan officials. The DOJ news release announcing the conviction (see here) called it a "massive [bribery] scheme."
What was Bourke guilty of? According to the DOJ release:
"Evidence presented at trial established that Bourke was a knowing participant in a scheme to bribe senior government officials in Azerbaijan with several hundred million dollars in shares of stock, cash, and other gifts. According to evidence presented at court, the bribes were meant to ensure that those officials would privatize the State Oil Company of the Azerbaijan Republic (SOCAR) in a rigged auction that only Bourke, fugitive Czech investor Viktor Kozeny and members of their investment consortium could win, to their massive profit."
Bourke lawyers (and many other observers) feel that Bourke was simply guilty of being negligent and not asking enough questions before making a foreign investment, an investment that was also made by former U.S. Senate Majority Leader George Mitchell and Columbia University (among others). An investment that resulted in Bourke reportedly losing $8 million.
The Bourke case is arguably the most complex and convoluted case in the history of the FCPA.
Yet it is not over as Bourke's lawyers have promised an appeal.
Under our legal system, if a grand jury indicts you, a jury convicts you, and a judge sentences you ... well, that is just sometimes "how the cookie crumbles."
However, the Bourke case and his sentence does not exactly leave one with "warm, fuzzy feelings."
In fact, Judge Scheindin (i.e. the sentencing judge and the judge who denied Bourke's post-verdict motions) is being widely reported as saying this at today's sentencing hearing:
“After years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.”
That seems an appropriate end to this chapter of the Bourke saga.
******
I haven't read every pleading in this case, every motion filed, nor obviously heard every word of evidence the convicting jury did. There is certainly enough in this case for a law school to one day offer an LLM in the Bourke case!
Nonetheless, it is a seriously open question in my mind as to whether this case was an appropriate exercise of prosecutorial discretion and whether justice has indeed been served with Bourke's sentence.
So what do you think? What are your thoughts on the Bourke case and his sentence?
I would like to do a post on reader commentary in the coming days, so please do contact me if you are so inclined.
For starters, Brian Whisler of Baker & McKenzie contacted me. He is what Brian (a former federal prosecutor) had to say:
"In federal parlance, 12 months and one day translates into 10 months due to some quirky Bureau of Prisons calculus. This sentence is also less than the 2 years that the US Probation Office represented as the appropriate guideline sentence. I expected that the district judge would impose a sentence less than the two years because (1) Bourke lost $8 million in a bribery scheme that did not meet its objective; (2) Bourke has no criminal history and does not represent a future danger, economic or otherwise. This bribery case, while certainly important to DOJ in its dedicated effort to eradicate corruption globally, stands in sharp contrast to the likes of Madoff and others whose harm to others is readily apparent."
As has been widely reported, this afternoon Judge Shira Scheindin (S.D.N.Y.) sentenced Bourke to a year and a day in federal prison (followed by three years probation) and ordered him to pay $1 million fine. The DOJ sought a 10 year prison sentence. The DOJ release announcing the sentence is presumably forthcoming.
Bourke who? What's this about?
To those of you wading into the details of this case for the first time or only recently, you will be well served by reading Andrew Longstreth's superb piece which recently appeared in the American Lawyer (see here).
Bourke was convicted in July by a jury for conspiring to pay bribes to Azerbaijan officials. The DOJ news release announcing the conviction (see here) called it a "massive [bribery] scheme."
What was Bourke guilty of? According to the DOJ release:
"Evidence presented at trial established that Bourke was a knowing participant in a scheme to bribe senior government officials in Azerbaijan with several hundred million dollars in shares of stock, cash, and other gifts. According to evidence presented at court, the bribes were meant to ensure that those officials would privatize the State Oil Company of the Azerbaijan Republic (SOCAR) in a rigged auction that only Bourke, fugitive Czech investor Viktor Kozeny and members of their investment consortium could win, to their massive profit."
Bourke lawyers (and many other observers) feel that Bourke was simply guilty of being negligent and not asking enough questions before making a foreign investment, an investment that was also made by former U.S. Senate Majority Leader George Mitchell and Columbia University (among others). An investment that resulted in Bourke reportedly losing $8 million.
The Bourke case is arguably the most complex and convoluted case in the history of the FCPA.
Yet it is not over as Bourke's lawyers have promised an appeal.
Under our legal system, if a grand jury indicts you, a jury convicts you, and a judge sentences you ... well, that is just sometimes "how the cookie crumbles."
However, the Bourke case and his sentence does not exactly leave one with "warm, fuzzy feelings."
In fact, Judge Scheindin (i.e. the sentencing judge and the judge who denied Bourke's post-verdict motions) is being widely reported as saying this at today's sentencing hearing:
“After years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.”
That seems an appropriate end to this chapter of the Bourke saga.
******
I haven't read every pleading in this case, every motion filed, nor obviously heard every word of evidence the convicting jury did. There is certainly enough in this case for a law school to one day offer an LLM in the Bourke case!
Nonetheless, it is a seriously open question in my mind as to whether this case was an appropriate exercise of prosecutorial discretion and whether justice has indeed been served with Bourke's sentence.
So what do you think? What are your thoughts on the Bourke case and his sentence?
I would like to do a post on reader commentary in the coming days, so please do contact me if you are so inclined.
For starters, Brian Whisler of Baker & McKenzie contacted me. He is what Brian (a former federal prosecutor) had to say:
"In federal parlance, 12 months and one day translates into 10 months due to some quirky Bureau of Prisons calculus. This sentence is also less than the 2 years that the US Probation Office represented as the appropriate guideline sentence. I expected that the district judge would impose a sentence less than the two years because (1) Bourke lost $8 million in a bribery scheme that did not meet its objective; (2) Bourke has no criminal history and does not represent a future danger, economic or otherwise. This bribery case, while certainly important to DOJ in its dedicated effort to eradicate corruption globally, stands in sharp contrast to the likes of Madoff and others whose harm to others is readily apparent."
Tuesday, October 27, 2009
The FCPA's Murky "Knowledge" Element
Knowledge is one of the more difficult concepts to distill in criminal law.
The FCPA is no exception, particularly when it comes to the FCPA's "while knowing" standard set forth in the FCPA's third party payment provisions which generally prohibit otherwise improper payments to “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 a foreign official. (see 78dd-1(a)(3)).
The third party payment provisions have not always included this "while knowing" standard. When first enacted in 1977 and up until 1988 (when the FCPA was amended), the third party payment provisions had a broader standard and applied if a defendant engaged in the prohibited conduct “while knowing or having reason to know” that all or a portion of such money or thing of value would be offered, given, or promised, directly or indirectly to a foreign official.
In a superb new piece titled, "The 'Knowledge' Requirement of the FCPA Anti-Bribery Provisions: Effectuating Or Frustrating Congressional Intent?," - Kenneth Winer and Gregory Husisian of Foley & Lardner (the “Authors”) conclude that "[t]he DOJ and SEC ... now interpret the knowledge requirement so broadly that they have effectively eviscerated the 1988 statutory changes thereby raising an important question: Are the DOJ and SEC frustrating the intent of Congress by ignoring the reason that Congress amended the FCPA?" (see here).
These are the type of questions we like to posed here at the FCPA Professor blog and, for the record, I am glad to see that I am not alone in questioning whether certain aspects of current FCPA enforcement frustrate or contradict Congressional intent in enacting or amending the FCPA.
The authors do a fine job of walking the reader through a concise overview of the “knowledge” element’s legislative history, particularly the 1988 House and Senate bills which sought to amend the "knowledge" element. Reviewing case law cited in the compromise conference report, the Authors conclude that the "intent of the 1988 amendments" was to "address concerns that FCPA intermediary violations could be found where there was no actual knowledge" and that even though "Congress adopted language to cover situations beyond actual knowledge, it did so in a very circumscribed fashion."
That fashion, according to the Authors, - "[o]nly in the limited circumstances where the party had something very close to actual knowledge - that is, both awareness of a 'high probability' that a corrupt payment would be made and a 'deliberate' decision to avoid gaining information in a conscious effort to avoid learning the truth - is the knowledge requirement satisfied."
According to the Authors, the DOJ and SEC, and most FCPA commentators, talk about "willful blindness" or "head in the sand" language, provide a list of red flags, and then state that "failure to follow up on red flags will be treated as knowledge, regardless of the reason why the person did not inquire."
Suppose a company is aware of a "high probability" that a corrupt payment is being made on its behalf, but that the company, perhaps because of "cost, delay, disruption or likely futility involved" in attempting to conduct an investigation, does not further. Under the "common view," such a failure to investigate is a form of culpable knowledge.
Nonsense says Winer and Husisian. They note that "[o]f course, failing to conduct sufficient due diligence or ignoring red flags can, in many circumstances, be foolish in the extreme," but that, as noted in the FCPA's legislative history and cases cited therein, such "foolishness, in and of itself, cannot constitute a finding that knowledge is present."
According to the Authors, the "net effect of this attitude is to bring the FCPA back to its original 'reason to know' standard" and the current enforcement approach utilizing this standard is nothing more than "implementing an approach that Congress specifically rejected."
Winer and Husisian close by saying:
"The SEC, DOJ, and many commentators might think it would be best if the knowledge requirement was satisfied by failure to conduct adequate due diligence or the failure to follow up on red flags (even if the defendant was not motivated by a purpose of avoiding knowledge of the corrupt payment). But that is not the policy balance that Congress struck in the 1988 amendments. The agencies should rethink their interpretation of the FCPA and enforce the knowledge requirement as Congress intended."
***
Curious as to the Author’s take on the knowledge jury instructions from the Bourke and Green trials this summer? The Bourke jury instructions - thumbs up; the Green jury instructions - thumbs down.
The FCPA is no exception, particularly when it comes to the FCPA's "while knowing" standard set forth in the FCPA's third party payment provisions which generally prohibit otherwise improper payments to “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 a foreign official. (see 78dd-1(a)(3)).
The third party payment provisions have not always included this "while knowing" standard. When first enacted in 1977 and up until 1988 (when the FCPA was amended), the third party payment provisions had a broader standard and applied if a defendant engaged in the prohibited conduct “while knowing or having reason to know” that all or a portion of such money or thing of value would be offered, given, or promised, directly or indirectly to a foreign official.
In a superb new piece titled, "The 'Knowledge' Requirement of the FCPA Anti-Bribery Provisions: Effectuating Or Frustrating Congressional Intent?," - Kenneth Winer and Gregory Husisian of Foley & Lardner (the “Authors”) conclude that "[t]he DOJ and SEC ... now interpret the knowledge requirement so broadly that they have effectively eviscerated the 1988 statutory changes thereby raising an important question: Are the DOJ and SEC frustrating the intent of Congress by ignoring the reason that Congress amended the FCPA?" (see here).
These are the type of questions we like to posed here at the FCPA Professor blog and, for the record, I am glad to see that I am not alone in questioning whether certain aspects of current FCPA enforcement frustrate or contradict Congressional intent in enacting or amending the FCPA.
The authors do a fine job of walking the reader through a concise overview of the “knowledge” element’s legislative history, particularly the 1988 House and Senate bills which sought to amend the "knowledge" element. Reviewing case law cited in the compromise conference report, the Authors conclude that the "intent of the 1988 amendments" was to "address concerns that FCPA intermediary violations could be found where there was no actual knowledge" and that even though "Congress adopted language to cover situations beyond actual knowledge, it did so in a very circumscribed fashion."
That fashion, according to the Authors, - "[o]nly in the limited circumstances where the party had something very close to actual knowledge - that is, both awareness of a 'high probability' that a corrupt payment would be made and a 'deliberate' decision to avoid gaining information in a conscious effort to avoid learning the truth - is the knowledge requirement satisfied."
According to the Authors, the DOJ and SEC, and most FCPA commentators, talk about "willful blindness" or "head in the sand" language, provide a list of red flags, and then state that "failure to follow up on red flags will be treated as knowledge, regardless of the reason why the person did not inquire."
Suppose a company is aware of a "high probability" that a corrupt payment is being made on its behalf, but that the company, perhaps because of "cost, delay, disruption or likely futility involved" in attempting to conduct an investigation, does not further. Under the "common view," such a failure to investigate is a form of culpable knowledge.
Nonsense says Winer and Husisian. They note that "[o]f course, failing to conduct sufficient due diligence or ignoring red flags can, in many circumstances, be foolish in the extreme," but that, as noted in the FCPA's legislative history and cases cited therein, such "foolishness, in and of itself, cannot constitute a finding that knowledge is present."
According to the Authors, the "net effect of this attitude is to bring the FCPA back to its original 'reason to know' standard" and the current enforcement approach utilizing this standard is nothing more than "implementing an approach that Congress specifically rejected."
Winer and Husisian close by saying:
"The SEC, DOJ, and many commentators might think it would be best if the knowledge requirement was satisfied by failure to conduct adequate due diligence or the failure to follow up on red flags (even if the defendant was not motivated by a purpose of avoiding knowledge of the corrupt payment). But that is not the policy balance that Congress struck in the 1988 amendments. The agencies should rethink their interpretation of the FCPA and enforce the knowledge requirement as Congress intended."
***
Curious as to the Author’s take on the knowledge jury instructions from the Bourke and Green trials this summer? The Bourke jury instructions - thumbs up; the Green jury instructions - thumbs down.
Monday, September 14, 2009
Verdict In ... Green's Found Guilty
The third FCPA trial of the summer has concluded and Gerald and Patricia Green (two Los Angeles area film executives) have been found guilty by a federal jury of conspiracy to violate the FCPA, substantive FCPA violations, and other charges (see here for the DOJ New Release).
According to the DOJ release, evidence introduced at trial showed that "beginning in 2002 and continuing into 2007, the Greens conspired with others to bribe the former governor of the [Tourism Authority of Thailand] in order to get lucrative film festival contracts as well as other TAT contracts." According to the release, the evidence also established that the Green's attempted to disguise the bribe payments by labeling them "sale commissions" and by making the payments "for the benefit of the former governor through the foreign bank accounts of intermediaries, including bank accounts in the name of the former governor's daughter and friend."
Reacting to the verdict, Assistant Attorney General Breuer stated that the DOJ "will not waiver in its fight against corruption, whether perpetrated within our borders or abroad" and that the FCPA "is a powerful tool that the [DOJ] will continue to use in an effort to stop individuals like the Greens who seek to further their own business interests through bribes paid to foreign officials."
The Greens are to be sentenced in December and the conspiracy and FCPA charges each carry a maximum penalty of five years in prison.
As mentioned, the Green trial was the third FCPA trial of the summer.
The other two were the Bourke matter (see here) and the Jefferson matter (see here).
Leading up to these trials, the FCPA bar and the enforcement officials themselves, predicted that one result of these trials would be greater clarity of some of the FCPA's murky elements.
While the verdicts were, on balance, pro-DOJ verdicts, the verdicts reached in these trials were not exactly uniform.
Bourke was convicted of conspiracy to violate the FCPA (the case did not proceed to trial on a substantive FCPA violation).
Jefferson was also convicted of conspiracy (although it is not entirely clear if the jury found him guilty of conspiracy to violate the FCPA). However, Jefferson was found not guilty on the substantive FCPA charge (the charge predicated on the "cash in the freezer" allegations).
Have these trials provided any greater clarity as to various FCPA elements as widely predicted?
I think it is far to say that as a result of the Bourke verdict (even though it was not a substantive FCPA trial), the FCPA's knowledge standard has never been broader, and can be satisfied even when an investor, like Bourke, does not actually pay a bribe, but is merely aware that others may be making bribe payments in a widely viewed corrupt country for the potential benefit of an entity in which he is an investor (see here and here).
Beyond this, I'm not sure that any further clarity as to substantive FCPA elements has resulted from these trials, but I would be interested to hear what others have to say.
Will these trials and the largely pro-DOJ verdicts send a "proceed with caution" message to any individual or corporation faced with an FCPA enforcement action and stiffle legitimate defense theories based on the FCPA's elements?
I expect so, yet that is indeed unfortunate as a significant portion of FCPA enforcements are based largely on DOJ/SEC's untested and unchallenged interpretations of the law.
According to the DOJ release, evidence introduced at trial showed that "beginning in 2002 and continuing into 2007, the Greens conspired with others to bribe the former governor of the [Tourism Authority of Thailand] in order to get lucrative film festival contracts as well as other TAT contracts." According to the release, the evidence also established that the Green's attempted to disguise the bribe payments by labeling them "sale commissions" and by making the payments "for the benefit of the former governor through the foreign bank accounts of intermediaries, including bank accounts in the name of the former governor's daughter and friend."
Reacting to the verdict, Assistant Attorney General Breuer stated that the DOJ "will not waiver in its fight against corruption, whether perpetrated within our borders or abroad" and that the FCPA "is a powerful tool that the [DOJ] will continue to use in an effort to stop individuals like the Greens who seek to further their own business interests through bribes paid to foreign officials."
The Greens are to be sentenced in December and the conspiracy and FCPA charges each carry a maximum penalty of five years in prison.
As mentioned, the Green trial was the third FCPA trial of the summer.
The other two were the Bourke matter (see here) and the Jefferson matter (see here).
Leading up to these trials, the FCPA bar and the enforcement officials themselves, predicted that one result of these trials would be greater clarity of some of the FCPA's murky elements.
While the verdicts were, on balance, pro-DOJ verdicts, the verdicts reached in these trials were not exactly uniform.
Bourke was convicted of conspiracy to violate the FCPA (the case did not proceed to trial on a substantive FCPA violation).
Jefferson was also convicted of conspiracy (although it is not entirely clear if the jury found him guilty of conspiracy to violate the FCPA). However, Jefferson was found not guilty on the substantive FCPA charge (the charge predicated on the "cash in the freezer" allegations).
Have these trials provided any greater clarity as to various FCPA elements as widely predicted?
I think it is far to say that as a result of the Bourke verdict (even though it was not a substantive FCPA trial), the FCPA's knowledge standard has never been broader, and can be satisfied even when an investor, like Bourke, does not actually pay a bribe, but is merely aware that others may be making bribe payments in a widely viewed corrupt country for the potential benefit of an entity in which he is an investor (see here and here).
Beyond this, I'm not sure that any further clarity as to substantive FCPA elements has resulted from these trials, but I would be interested to hear what others have to say.
Will these trials and the largely pro-DOJ verdicts send a "proceed with caution" message to any individual or corporation faced with an FCPA enforcement action and stiffle legitimate defense theories based on the FCPA's elements?
I expect so, yet that is indeed unfortunate as a significant portion of FCPA enforcements are based largely on DOJ/SEC's untested and unchallenged interpretations of the law.
Wednesday, July 22, 2009
The Bourke Jury Instructions
As those who follow the FCPA are already aware, Frederic Bourke, Jr. was recently found guilty by a federal jury of (among other charges) conspiracy to violate the FCPA for his role in a scheme to bribe "foreign officials" in Azerbaijan in connection with the privatization of the State Oil Company of Azerbaijan. See here for the DOJ News Release.
Contrary to numerous media reports, Bourke was not on trial for "violating the FCPA" (the original indictment against Bourke contained substantive FCPA charges, however the superseding indictment removed the substantive FCPA charges in favor of conspiracy charges).
Regardless, the Bourke trial was closely followed by the FCPA bar as FCPA trials are very rare. Because FCPA trials are rare, so too are FCPA jury instructions. The Bourke jury instructions (see here) provide for an interesting, albeit frustrating, read. In instructing the jury on the conspiracy counts, the jury was instructed on the seven elements of an FCPA violation.
"Big picture" these FCPA instructions (which begin on Pg. 23 and which the jury was duty-bound to accept) are a mess.
The problem starts with the second element "interstate commerce" and contains a fundamental misstatement of the law. The instructions say (on pg. 24) that a "domestic concern" (as Bourke is under FCPA-speak) "must have intended to make use of the mails or a means or instrumentality of interstate commerce" in order to violate the FCPA. This is the so-called "territorial" jurisdictional provision found at 78dd-2. However, the 1998 amendments to the FCPA expanded the jurisdictional reach of the FCPA, as applied to "domestic concerns," by adding an alternative "nationality" jurisdictional provision found at 78dd-2(i) which removes the interstate commerce / U.S. territorial nexus requirements. Thus, a "domestic concern" can be charged and found liable for a substantive FCPA violation even if the prohibited activity took place entirely outside of the U.S. The jury instruction that the "domestic concern" "must have intended to make use of the mails or a means or instrumentality of interstate commerce" is thus just plain wrong.
The second problem is found in what the instructions say is the fifth element of a substantive FCPA violation - the knowledge of payment to a foreign official. The instructions say (on pg. 26-27) that a "foreign official" is: (1) an officer or employee of a foreign government; (2) any department, agency, or instrumentality of such foreign government, or (3) any person acting in an official capacity for or on behalf of such government or department, agency, or instrumentality. So far so good as the instruction merely tracks the language of 78dd-2(h)(2). The problem is the next sentence of the instruction - "[a]n 'instrumentality' of a foreign government includes government-owned or government-controlled companies" (see pg. 27).
Where did that come from? Certainly not the text of the FCPA, as the statute does not define the term "instrumentality." While it is true the the Department of Justice and the Securities and Exchange Commission take the position that government-owned or government-controlled companies are "instrumentalities" of a foreign government and that all employees of such companies (regardless of rank or title) are thus "foreign officials" under the FCPA, this is an unchallenged and untested legal theory.
As I am exploring in a current work-in-progress, DOJ/SEC's aggressive interpretation of the "foreign official" element - to include employees of government-owned or government-controlled companies - is ripe for challenge in that it is, among other things, not supported by the FCPA's extensive legislative history and is undermined by reference to other U.S. statutes which cover foreign or domestic government instrumentalities. Another way to look at it is this way - if the DOJ/SEC's interpretation were to be applied in an intellectually honest fashion, would not all GM or AIG employees be considered U.S. "foreign officials" because the U.S. government owns or controls those companies?
A further problem with the instructions, is that even accepting the broadness by which the instructions define "foreign official" that term is not used consistently throughout the instructions. For instance, in discussing the sixth element of an FCPA violation - purpose of payment, the instructions interchangeably use the terms "foreign official" and "foreign public official." (see Pg. 28). Even more confusing is that the instructions, when discussing that solicitation of a bribe is not a defense, (see Pg. 29) say that "[i]t is not a defense that the payment was demanded by a government official as a price for gaining entry into a market or to obtain a contract or other beneift." Thus, literally in the span of three pages, the instructions refer to the key "foreign official" element of an FCPA violation three different ways - "foreign official," "foreign public official," and "government official" even though the later two terms appear nowhere in the statute.
What a mess!
Contrary to numerous media reports, Bourke was not on trial for "violating the FCPA" (the original indictment against Bourke contained substantive FCPA charges, however the superseding indictment removed the substantive FCPA charges in favor of conspiracy charges).
Regardless, the Bourke trial was closely followed by the FCPA bar as FCPA trials are very rare. Because FCPA trials are rare, so too are FCPA jury instructions. The Bourke jury instructions (see here) provide for an interesting, albeit frustrating, read. In instructing the jury on the conspiracy counts, the jury was instructed on the seven elements of an FCPA violation.
"Big picture" these FCPA instructions (which begin on Pg. 23 and which the jury was duty-bound to accept) are a mess.
The problem starts with the second element "interstate commerce" and contains a fundamental misstatement of the law. The instructions say (on pg. 24) that a "domestic concern" (as Bourke is under FCPA-speak) "must have intended to make use of the mails or a means or instrumentality of interstate commerce" in order to violate the FCPA. This is the so-called "territorial" jurisdictional provision found at 78dd-2. However, the 1998 amendments to the FCPA expanded the jurisdictional reach of the FCPA, as applied to "domestic concerns," by adding an alternative "nationality" jurisdictional provision found at 78dd-2(i) which removes the interstate commerce / U.S. territorial nexus requirements. Thus, a "domestic concern" can be charged and found liable for a substantive FCPA violation even if the prohibited activity took place entirely outside of the U.S. The jury instruction that the "domestic concern" "must have intended to make use of the mails or a means or instrumentality of interstate commerce" is thus just plain wrong.
The second problem is found in what the instructions say is the fifth element of a substantive FCPA violation - the knowledge of payment to a foreign official. The instructions say (on pg. 26-27) that a "foreign official" is: (1) an officer or employee of a foreign government; (2) any department, agency, or instrumentality of such foreign government, or (3) any person acting in an official capacity for or on behalf of such government or department, agency, or instrumentality. So far so good as the instruction merely tracks the language of 78dd-2(h)(2). The problem is the next sentence of the instruction - "[a]n 'instrumentality' of a foreign government includes government-owned or government-controlled companies" (see pg. 27).
Where did that come from? Certainly not the text of the FCPA, as the statute does not define the term "instrumentality." While it is true the the Department of Justice and the Securities and Exchange Commission take the position that government-owned or government-controlled companies are "instrumentalities" of a foreign government and that all employees of such companies (regardless of rank or title) are thus "foreign officials" under the FCPA, this is an unchallenged and untested legal theory.
As I am exploring in a current work-in-progress, DOJ/SEC's aggressive interpretation of the "foreign official" element - to include employees of government-owned or government-controlled companies - is ripe for challenge in that it is, among other things, not supported by the FCPA's extensive legislative history and is undermined by reference to other U.S. statutes which cover foreign or domestic government instrumentalities. Another way to look at it is this way - if the DOJ/SEC's interpretation were to be applied in an intellectually honest fashion, would not all GM or AIG employees be considered U.S. "foreign officials" because the U.S. government owns or controls those companies?
A further problem with the instructions, is that even accepting the broadness by which the instructions define "foreign official" that term is not used consistently throughout the instructions. For instance, in discussing the sixth element of an FCPA violation - purpose of payment, the instructions interchangeably use the terms "foreign official" and "foreign public official." (see Pg. 28). Even more confusing is that the instructions, when discussing that solicitation of a bribe is not a defense, (see Pg. 29) say that "[i]t is not a defense that the payment was demanded by a government official as a price for gaining entry into a market or to obtain a contract or other beneift." Thus, literally in the span of three pages, the instructions refer to the key "foreign official" element of an FCPA violation three different ways - "foreign official," "foreign public official," and "government official" even though the later two terms appear nowhere in the statute.
What a mess!
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