This article was reprinted with permission
from FCPA Professor
Two years ago today, for the first time in
FCPA history a motion to dismiss was filed, with the benefit of a detailed
and complete overview of the FCPA's extensive legislative history on the
"foreign official" element (see here for
my declaration) ,challenging the DOJ's interpretation that employees of alleged
state-owned or state-controlled enterprises are "foreign officials" under the
The Carson "foreign official" challenge lead to
other "foreign official" challenges in the Lindsey Manufacturing and John
O'Shea matters, as well as the 11th Circuit appeal pending in the Joel
Esquenazi and Carlos Rodriguez matter - the first time in FCPA history
that "foreign official" will be directly before an appeals court. You of
course are entitled to your own opinion as to the end results in the Carson,
Lindsey Manufacturing and O'Shea matters, including whether "foreign official"
impacted the results. (See prior posts here
It is interesting to note that since
the Carson "foreign official" challenge two years ago, there has
been no new case in which an individual has been
charged with an FCPA anti-bribery violation based on the theory that SOE
employees are "foreign officials."
February 21, 2012
One year ago today, the DOJ moved to dismiss the Africa
Sting cases after suffering several losses in the first two sets of
trials. (See here for
the prior post). The dismissal occurred shortly after the jury foreman in
the second trial wrote this guest
post published on FCPA Professor.
In granting the DOJ's motion, Judge Richard Leon stated
"This appears to be the end of a long and sad
chapter in the annals of white collar criminal enforcement. Unlike
takedown day in Las Vegas, however, there will be no front page story in the
New York Times or the Post for that matter tomorrow reflecting the government's
decision today to move to dismiss the charges against the remaining defendants
in this case. Funny isn't it what sells newspapers.
The good news, however, is that for these
defendants, agents, prosecutors, defense counsel and the Court we can get on
with our professional and personal lives without the constant strain and burden
of three to four more eight week trials hanging over our heads.
I for one hope this very long, and I'm sure
very expensive, ordeal will be a true learning experience for both the
Department and the FBI as they regroup to investigate and prosecute FCPA cases
against individuals in the future.
Two years ago, at the very outset of this
case I expressed more than my fair share of concerns on the record regarding
the way this case has been charged and was being prosecuted. Later,
during the two trials that I presided over I specifically commented again on
the record regarding the government's very, very aggressive conspiracy theory
that was pushing its already generous elasticity to its outer limits. Of
course, in the second trial that elastic snapped in the absence of the
necessary evidence to sustain it.
In addition, in that same trial, I expressed
on a number of occasions my concerns regarding the way this case had been
investigated and was conducted especially vis-a-vis the handling of Mr.
Bistrong. I even had an occasion, sadly, to chastise the government in a
situation where the government's handling of the discovery process constituted
sharp practices that have no place in a federal courtroom.
Notwithstanding all of this water over the
dam, and there has been a lot of water, I'm happy to see and I applaud the
Department for having the wisdom and courage of its convictions to face up to
the limitations of its case as revealed in the past 26 weeks of trial and the
courage to do the right thing under the circumstances.
Having served at the higher levels of the
Department, I know that that was not an easy decision. They never
are, when so much has been invested, and the agents and the prosecutors are so
convinced of the righteousness of their position. I for one however am
confident this will be in the end a positive, if not painful, lesson that
results in better prosecutions of individuals in the future under the
FCPA. As for the defendants, I hope the healing process is a swift one
and that they get back to their normal lives in the very near future.
Finally, I would be remiss if I did not
comment on the tireless and spirited effort by the defense counsel from all
over the country who came here to try these very lengthy and complicated cases
under difficult circumstances and some even pro bono. Their hard work and
effective advocacy are a testament to how strong our criminal defense bar is
As so without further adieu I grant the
government's motion to dismiss. The defendants are excused."
With Judge Leon's words, the world changed for
twenty-two individuals and their families. Yet the wounds inflicted and
damage done to their real reputations and real careers will never fully heal.
Read more articles on the FCPA by Mike
Koehler at FCPA
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