While Foreign Corrupt Practices Act enforcement is largely devoid of judicial scrutiny, sentencing of individual defendants remains a judicial function and provides a rare (and often overlooked) public glimpse of someone other than the enforcement agencies weighing in on issues relevant to FCPA enforcement.
Sentencing transcripts not only capture advocacy moments seldom publicly seen in FCPA enforcement, but also telling unscripted comments concerning FCPA enforcement. For instance, while the enforcement agencies and others often portray bribery as a black and white issue, judges sentencing FCPA individual defendants often see shades of gray.
Several examples are highlighted in the book “The FCPA in a New Era” and another noteworthy example concerns recent remarks made by Nicholas Garaufis (Senior District Judge, E.D.N.Y. – nominated to the bench by President Clinton) in sentencing Samuel Mebiame, a Gabonese national connected to Och-Ziff who pleaded guilty to conspiracy to violate the FCPA’s anti-bribery provisions in connection with African mining projects.