In the DOJ’s self-declared “new era of FCPA enforcement,” it has been very successful in exercising its leverage against risk averse corporate defendants to secure settlements largely resolved through resolution vehicles not subjected to any meaningful judicial scrutiny.
Yet, when the DOJ actually is put in a position to prove an FCPA case to someone other than itself or to defend other aspects of its case, the DOJ has generally struggled. (See here for “What Percentage of DOJ FCPA Losses is Acceptable?”).
As highlighted in this prior post, in April 2014 the DOJ criminally charged Dmitry Firtash, a high-profile Ukrainian businessman, and several others “with participating in an alleged international racketeering conspiracy involving bribes of state and central government officials in India to allow the mining of titanium minerals.”
Prior to the April 2014 unsealed indictment, Firtash was arrested in Austria and thereafter paid $174 million to post bail.
Responding to the U.S. criminal charges, as noted in this prior post, Firtash released a video which insisted he is an innocent party caught at the center of a “battlefield for the two biggest global players of Russia and the USA”.
As highlighted last week prior to an Austrian court ruling on the U.S.’s request to extradite Firtash, “Firtash’s lawyers will argue that his arrest — on charges of bribing officials in India to secure a titanium mining deal that never materialized — was really an effort by the United States to remove him from public life in Ukraine, where he controls major business interests and still holds considerable clout” (quoting from the New York Times article).
As reported by the New York Times, an Austrian judge refused last week to order the extradition of Firtash “siding with defense lawyers who said the American request was politically motivated.”
According to the article:
“The ruling, by Judge Christoph Bauer of the Landesgerichtsstrasse Regional Court in Vienna, amounted to a scathing rebuke of the Justice and State Departments, and reflected the diminished credibility of the United States authorities, even in the eyes of a European ally.
Judge Bauer said that he did not doubt the veracity of two witnesses cited by American prosecutors in their filings, “but whether these witnesses even existed,” because the Justice Department repeatedly refused to provide requested information or respond to questions.
At a hearing that stretched late into the evening, Mr. Firtash’s defense team sought to demolish the American case and discredit the Justice Department’s extradition request.
The main thrust of the team’s arguments, and the issue that clearly dominated the attention of Judge Bauer, was that the case was directed by the State Department in pursuit of larger American foreign policy goals.
In perhaps their most electrifying argument, Mr. Firtash’s lawyers asserted that an initial request by the United States for his arrest, on Oct. 30, 2013, was directly tied to a trip to Ukraine by an assistant secretary of state, Victoria Nuland, in which she sought to prevent Mr. Yanukovych from backing out of a promise to sign sweeping political and trade agreements with Europe.
Ms. Nuland left Washington on the day the arrest request was submitted toAustria. The request was rescinded four days later, said a lawyer, Christian Hausmaninger, after Ms. Nuland came to believe she had received assurances from Mr. Yanukovych that he would sign the accords.
From that point, nothing happened in the Indian bribery case, Mr. Hausmaninger said, until Feb. 26 — four days after Mr. Yanukovych was ousted after months of street protests.
The arrest request was renewed then, and the Austrian authorities detained Mr. Firtash two weeks later, the same day the new Ukrainian prime minister, Arseniy P. Yatsenyuk, was visiting President Obama at the White House.
The Justice Department has denied any political motivation in the case.
In a statement issued by the State and Justice Departments, the government said it was “disappointed” by the ruling and hoped for an appeal.
Judge Bauer said he had concluded that the American authorities had been after Mr. Firtash since at least 2006 and he noted that a finding of political motivation was sufficient to reject extradition even if a crime had occurred.
“America obviously saw Firtash as somebody who was threatening their economic interests,” Judge Bauer said, explaining his decision from the bench. But he also said the United States had not provided coherent evidence of a crime either: “There just wasn’t sufficient proof.”
The Firtash enforcement action is certainly not the first Foreign Corrupt Practices Act enforcement action against a foreign national in which the DOJ has suffered extradition defeats. (See here for a prior guest post regarding Victor Kozeny).