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Checking In On The Firtash Motion To Dismiss

firtash

As highlighted in this prior post, in April 2014 the DOJ announced the unsealing of a criminal indictment charging six individuals “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.” Among the defendants was high-profile Ukrainian businessman Dmitry Firtash.

Prior posts here and here have focused on extradition issues related to Firtash and this prior post highlighted Firtash’s May 2017 motion to dismiss.

In pertinent part, Firtash asserts:

“This Court should dismiss the indictment for three reasons. First, there is no venue in the Northern District of Illinois and a trial in this district would violate the U.S. Constitution. Second, none of the laws that Firtash is charged with violating properly apply beyond the territory of the United States nor are they domestic as alleged. Third, the prosecution is a violation of Firtash’s due process rights because the United States has no legitimate interest in prosecuting the charged conduct.”

Regarding the FCPA specific portions of Firtash motion, in a July 2017 response brief the DOJ stated in pertinent part as follows:

“The defendants’ motion to dismiss Count Five is similarly meritless. Count Five charges the defendants under Title 18, United States Code, Section 371, with conspiring to violate Title 15, United States Code, Sections 78dd-2 and 78dd-3, two sections of the Foreign Corrupt Practices Act (the “FCPA”). An indictment charging a Section 371 conspiracy need only plead the elements of Section 371, and Count Five easily meets this requirement. The defendants claim that Count Five must allege that a conspirator “committed bribery” within the United States, but the commission of an act of bribery within the United States is not a required element of a substantive offense under Sections 78dd-2 and 78dd-3, and Count Five charges a conspiracy in any event, so it is unnecessary to allege the completion of the crime. United States v. Feola, 420 U.S. 671, 694 (1975).

The defendants also complain that since they personally are not “domestic concerns” (that is, United States nationals), or did not personally take action within the United States, they cannot be prosecuted for entering into a conspiracy to violate Sections 78dd-2 (which applies to “domestic concerns”) and Sections 78dd-3 (which applies to foreign nationals that act within the United States). But the Supreme Court has recently reaffirmed the general rule that a person may be liable for conspiracy even though he is incapable of committing the substantive offense himself; it is sufficient that he agree that the underlying crime be committed by a member of the conspiracy who is capable of committing it. Ocasio v. United States, 136 S. Ct. 1423 (2016). Contrary to the defendants’ contention, they do not fall within a narrow exception to this general rule created by Gebardi v. United States, 287 U.S. 112 (1932); that exception applies in unusual circumstances not applicable here, where Congress has deliberately exempted either victims of, or necessary parties to, the crime from liability. The language and legislative history of the FCPA make clear that Congress intended for the FCPA to be far-reaching, and for ordinary principles of conspiratorial and accessory liability to apply. Adopting the interpretation urged by the defendants would also risk putting the United States in violation of its international legal obligations, which require that the United States enact criminal legislation broadly punishing any person’s involvement in criminal efforts to bribe foreign officials. United States v. Kay, 359 F.3d 738, 755 n.68 (5th Cir. 2004).”

In an August 2017 reply brief, Firtash stated in pertinent as follows regarding the disputed FCPA issues:

“The issue raised by Defendants in their Motion to Dismiss was that they do not fall within any of the categories of persons subject to prosecution under the FCPA and that under United States v. Hoskins, 123 F. Supp. 3d 316 (D. Conn. 2015) and related cases, courts should not allow the government to accomplish through a conspiracy charge what the legislature did not permit in enacting the FCPA. The government cites a number of domestic conspiracy cases in which extraterritorial application of a statute is not at issue and then argues that the Court should reject the reasoning of Hoskins based on a Hobbs Act domestic conspiracy case and cases analyzing the kingpin statute which applies to enhanced penalties for domestic felony narcotic cases. The government’s position is without merit.”

As highlighted in prior posts here and here, in August 2018 the Second Circuit issued its decision in Hoskins rejecting the DOJ’s expansive jurisdictional theory of prosecution against Lawrence Hoskins, a U.K. national.

In October 2018, Firtash filed a motion arguing:

“Hoskins is directly on point because it limits the reach of the Foreign Corrupt Practices Act (“FCPA”) in a manner the government concedes would not cover Firtash … as pled in Count V of the Indictment. Unable to distinguish Hoskins, which is directly on point, the government argues this Court should ignore the Second Circuit’s treatment of the same FCPA conspiracy issue involved here. The government is forced to largely rely on a strained reading of Hoskins itself and analogies to inapplicable cases. The Court should reject the government’s arguments, follow the Second Circuit’s reasoned Hoskins opinion, and dismiss Count V.

[…]

The government’s Indictment directly conflicts with Hoskins because it charges Firtash … with conspiring to violate the FCPA when neither fit into the statute’s categories of defendants. With respect to Firtash, the government does not and cannot argue otherwise. (See Gov. Resp. at 2–3 (conceding that it “does not plan to present evidence that defendant Firtash took any acts while located within the United States, or that either defendant Firtash … fell into any of the categories of individuals listed in Section 78dd-2 of the FCPA (i.e., an officer, director, employee, agent, or stockholder of a domestic concern).”)”

Firtash’s motion to dismiss remains pending before Judge Rebecca Pallmeyer (N.D. of Illinois).

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