Corrupt Intent Archives - Page 3 of 6

DOJ’s Kahn Answers The PPE FCPA Hypothetical

By Mike Koehler on May 20, 2020 in Corrupt Intent, COVID-19

One common Foreign Corrupt Practices Act hypothetical that has been repeated often over the last couple of months sort of goes like this. The current COVID-19 crisis presents increased FCPA risks because, among other things, businesses are scrambling to secure personal protective equipment (PPE) for their workers and some of this PPE may be located in foreign countries and/or manufactured by foreign governments or state-owned or state controlled enterprises. (See here, here, here, and here for examples).

I’ve never really understood this hypothetical. Among other things, in the FCPA’s 40+ year history I am not aware of any enforcement action in which the alleged improper conduct occurred in connection with the purchase of a good or service rather than in connection with selling or facilitating the sale of a good or service.

Moreover, as highlighted in this prior post, the FCPA has, among other elements, a corrupt intent element.

As highlighted below, during a webinar yesterday Daniel Kahn (Senior Deputy Chief, U.S. Department of Justice Criminal Division – Fraud Section) addressed a version of this hypothetical.

In Post-Trial Motions, Baptiste Seeks Judgment Of Acquittal Or New Trial Based On Ineffective Assistance Of Counsel

By Mike Koehler on September 4, 2019 in Causation, Corrupt Intent, FCPA Trial, FCPA Trials, Joseph Baptiste

As highlighted in this previous post, in 2017 (in connection with an undercover string) the DOJ unsealed criminal charges against Joseph Baptiste (a retired U.S. Army Colonel, practicing dentist, and founder / president of a Maryland-based Haitian focused non-profit) for alleged Haitian bribery.

In the original charging document, it was noted as follows:

Second Circuit Affirms Seng’s Conviction

By Mike Koehler on August 12, 2019 in Corrupt Intent, FCPA Jurisprudence, Ng Lap Seng, Obtain or Retain Business, U.S. Domestic Bribery Statute, Uncategorized

Previous posts here, here and here highlighted Ng Lap Seng’s Second Circuit appeal after a federal jury convicted him in July 2017 of two counts of violating the FCPA, one count of paying bribes and gratuities, one count of money laundering and two counts of conspiracy “for his role in a scheme to bribe United Nations ambassadors to obtain support to build a conference center in Macau that would host, among other events, the annual United Nations Global South-South Development Expo.”

Recently, in this decision the Second Circuit affirmed Seng’s conviction. As stated in the opinion, the issues on appeal were: (i) whether the United Nations is an “organization” within the meaning of 18 U.S.C. 666; (ii) whether the jury was correctly instructed as to controlling law, particularly as pertains to bribery in light of McDonnell v. United States (see here for the prior post concerning the Supreme Court’s 2016 decision construing 18 USC 201 – the domestic bribery statute – particularly the meaning of “official act”; and (iii) whether the evidence was insufficient to support a guilty plea.

Canadian Court Finds That Bribery Is A Specific Intent Offense And That Government Failed To Prove That Defendant Knew That Bribe Recipient Was A “Foreign Public Official”

By Mike Koehler on March 20, 2019 in Canada, Corrupt Intent, Cryptometrics, Foreign Official, Robert Barra, Shailesh Govinda

This 2014 post highlighted Canadian charges against Robert Barra and Shailesh Govindia (individuals previously associated with Cryptometrics) for bribing Indian officials including those associated with Air India.

As highlighted in the below post, a Canadian court recently concluded that violations under Canada’s FCPA-like law – the Corruption of Foreign Public Officials Act (CFPOA) – are a specific intent offense and that Barra did not know the individual he allegedly bribed was a “foreign public official.”

As further highlighted below, the Canadian court’s specific intent ruling conflicts with certain FCPA jurisprudence while the Canadian court’s ruling regarding knowledge of the status of a “foreign public official” ruling is consistent with certain U.S. jurisprudence – namely U.S. v. Carson – in which the court issued a “knowledge of status of foreign official” jury instruction prior to trial. (See here).

Next Up For The Second Circuit – An Opportunity To Construe The FCPA’s Corrupt Intent And Obtain And Retain Business Elements

By Mike Koehler on August 29, 2018 in Corrupt Intent, FCPA Appeals, Ng Lap Seng, Obtain or Retain Business

Fresh off its recent decision in U.S. v. Hoskins (see here and here for prior posts), the Second Circuit has another Foreign Corrupt Practices Act appeal on its docket.

This July post previewed the FCPA (and related) appeal of Ng Lap Seng who was convicted of two counts of violating the FCPA, one count of paying bribes and gratuities, one count of money laundering and two counts of conspiracy “for his role in a scheme to bribe United Nations ambassadors to obtain support to build a conference center in Macau that would host, among other events, the annual United Nations Global South-South Development Expo.”

Recently Seng formally filed this appellate brief. The FCPA issues on appeal concern the corrupt intent element and the obtain or retain business element. There is an abundance of information in the legislative history regarding these topics, the open question is whether Seng’s lawyers will fully take advantage of it.

← Previous 1 2 3 4 … 6 Next →

Top Menu

Navigation

DOJ’s Kahn Answers The PPE FCPA Hypothetical

In Post-Trial Motions, Baptiste Seeks Judgment Of Acquittal Or New Trial Based On Ineffective Assistance Of Counsel

Second Circuit Affirms Seng’s Conviction

Canadian Court Finds That Bribery Is A Specific Intent Offense And That Government Failed To Prove That Defendant Knew That Bribe Recipient Was A “Foreign Public Official”

Next Up For The Second Circuit – An Opportunity To Construe The FCPA’s Corrupt Intent And Obtain And Retain Business Elements

Subscribe