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The Challenges Of Pursuing Foreign Bribe-Takers

Today’s post is from Mike Dearington [1], an associate at Arent Fox LLP in Washington, DC. Dearington has previously authored several FCPA Professor guest posts on the Siriwan matter (see here [2]).

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Last week, Leslie Caldwell (Assistant Attorney General for the DOJ Criminal Division) spoke [3] at the American Conference Institute’s International Conference on the Foreign Corrupt Practices Act. Caldwell discussed the Criminal Division’s approach to combatting global corruption, warning that corrupt foreign officials are also in the government’s crosshairs.  “And now we also are prosecuting the bribe takers, using our money laundering and other laws,” Caldwell stated. “[O]ur efforts to hold bribe takers as well as bribe payors accountable for their criminal conduct are greatly aided by our foreign partners.”

Meanwhile, the very same day, federal prosecutors in the Central District of California requested that a court postpone an extradition status hearing in United States v. Siriwan, the government’s bellwether case against a foreign official who allegedly accepted bribes.  In the filing [4], DOJ prosecutors revealed that the foreign official, Juthamas Siriwan, former governor of the Tourism Authority of Thailand, has been indicted on domestic bribery charges at home in Thailand.  Thailand’s indictment reduces the possibility that it will extradite the former official to the United States to face money-laundering charges.

Prosecutors charged Siriwan in 2009 with violations of the Money Laundering Control Act, alleging that Siriwan used the US financial system to promote or conceal violations of the FCPA and Thai law.  A jury convicted the alleged bribe payers, Hollywood film executives Gerald and Patricia Green, of FCPA violations in 2010 for allegedly paying Siriwan $1.8 million in bribes in exchange for lucrative film festival contracts.  But prosecutors’ case against Siriwan has stalled due to the government’s inability to obtain Siriwan’s extradition from Thailand.  The court has deferred ruling on the government’s somewhat novel legal theory in Siriwan until such time as Siriwan is extradited to the United States to stand trial.  Now that Thailand is contemporaneously prosecuting Siriwan at home, extradition seems even more unlikely, and prosecutors may be unable to convince the court to further stay the case, which has been pending for nearly six years.

The government’s extradition challenges in Siriwan suggest that the Criminal Division’s tactic of pursuing bribe-taking foreign officials can be fraught with diplomatic challenges and uncertainty.  Enforcement agencies in a corrupt official’s home country have a significant interest in holding officials accountable at home.  And a country’s unwillingness to communicate and coordinate with prosecutors in the United States can further complicate an already‑complicated case.  Thailand has been less than clear about whether it intends to extradite Siriwan.  Indeed, prosecutors seem to have learned of Thailand’s decision to indict Siriwan only after finding an article in the Bangkok Post.  In the DOJ’s filing, prosecutors explained, “On November 13, 2014, the Bangkok Post published a report that ‘a joint panel of the Office of the Attorney-General (OAG) and National Anti-Corruption Commission (NACC) has agreed to indict former Tourism Authority of Thailand (TAT) governor Juthamas Siriwan in a film festival bribery case.’  The parties are each gathering more information regarding the development.”

Thailand’s unilateralism with respect to Siriwan has posed problems for prosecutors in the past.  Back in July 2012, after requesting Siriwan’s extradition, prosecutors admitted to the court that the government “has not yet received a response from Thailand regarding extradition,” only to learn from Thailand four months later that, “[Thailand is] in the process of gathering further evidences [sic] before completing the investigation in order to bring both offenders to court to be formally charged.  Hence, we must postpone the extradition . . . as requested by the U.S. Government, according to the Extradition Act . . . .”

Although the Criminal Division has obtained guilty pleas from foreign officials in other enforcement actions since indicting Siriwan in 2009—including in Haiti Teleco (Robert Antoine) and Direct Access Partners/BANDES (Maria de los Angeles Gonzalez de Hernandez)—Siriwan remains an important test case.  Prosecutors will likely encounter extradition challenges in future cases against bribe-taking foreign officials, whose home countries have significant interests in prosecuting the officials domestically.  And while the court in Siriwan awaits further information from the government about whether Thailand plans to extradite Siriwan, prosecutors’ legal theory remains untested.

The views expressed in this post are personal views and do not represent the views of Arent Fox LLP, its partners, employees or clients. Furthermore, the information provided is not intended to be legal advice and does not create an attorney-client relationship.