What Do The Numbers Look Like?
This recent Wall Street Journal article focused on individual DOJ enforcement actions in connection with corporate enforcement actions in the aftermath of the so-called Yates Memo (September 2015) in which the DOJ was supposedly going to place a renewed emphasis “in any corporate case of holding individual wrongdoers accountable.”
The article noted: “between 2016 and 2020, [the DOJ] prosecuted employees in 37% of 146 cases where companies received leniency through so-called deferred or non-prosecution agreements.”
What do the numbers look like specifically in the FCPA context?
Four Individuals Criminally Charged In Connection With Bolivian Bribery Scheme To Secure Tear Gas Contract
As the saying goes – where there is smoke there is fire.
Yesterday the DOJ announced that Bryan Berkman, Luis Berkman, Philip Lichtenfeld and Sergio Mendez were criminally charged for their roles in a Bolivian bribery scheme to secure a tear gas contract.
Bryan Berkman, a U.S. citizen, is described as owning a Florida company (“Intermediary Company”) that sold tactical equipment including to the Bolivian Ministry of Defense. According to this article, the company is Bravo Tactical Solutions.
Sergio Mendez, a citizen of Bolivia, served as an official in the Bolivian Ministry of Government from 2019 – 2020.
Luis Berkman, also a U.S. citizen and Bryan’s father, is described as a “close associate” of Mendez as well as an “associate” of co-conspirator 1 (described as a high ranking official in the Bolivian Ministry of Government). According to the same article, Luis runs a Florida based company called International Defense Group.
FCPA Flash Podcast – A Conversation With Douglas Zolkind Regarding DOJ FCPA Issues
The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.
This FCPA Flash podcast episode is a conversation with Douglas Zolkind. Zolkind recently joined the New York office of Debevoise & Plimpton after serving as an Assistant U.S. Attorney for the Southern District of New York. Among the cases he prosecuted were FCPA trial convictions involving Ng Lap Seng and Patrick Ho. During the podcast, Zolkind: (i) shares his experiences trying FCPA cases including the difference between “FCPA violations” and “FCPA violations that can be proven at trial”; (ii) discusses underappreciated aspects of DOJ FCPA enforcement; (iii) opines whether the government is vulnerable on some of its FCPA enforcement theories; and (iv) suggests a change to FCPA enforcement.
DOJ Announces Individual Criminal Charges In Connection With Ecuador Bribery Scheme
Yesterday, the DOJ announced criminal charges against Jorge Cherrez Mino (pictured) and John Robert Luzuriaga Aguinaga in connection with a bribery scheme in Ecuador.
According to this criminal complaint, Cherrez (a citizen of Ecuador who is currently located in Mexico) served as the manager, president, and director of the “U.S. Investment Fund Companies” (a domestic concern under the FCPA).
According to this separate criminal complaint, Luzuriaga (a citizen of Ecuador who is currently located in Florida) served as the Risk Director for Instituto de Seguridad Social de la Policia Nacional (“ISSPOL” – an Ecuadorian public institution responsible for managing the financial contributions by Ecuadorian police officers toward their social security). The complaint alleges that “ISSPOL was controlled by the government of Ecuador and performed a function that Ecuador treated as its own, and was an ‘instrumentality’ of the Ecuadorian government.”)
Even though the Cherrez complaint provides a jurisdictional basis for FCPA anti-bribery offenses and indeed alleges that Cherrez violated the FCPA, the Cherrez and Luzuriaga complaints charge money laundering offenses.
DOJ Individual Actions: The Strange Public – Private Divide
This recent post highlighted certain facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2020 and historically.
As highlighted in the prior post, DOJ FCPA individual enforcement actions are significantly skewed by a small handful of enforcement actions and the reality is, despite the DOJ’s rhetoric, approximately 75% of DOJ corporate enforcement actions since 2006 have not (at least yet) resulted in any related DOJ FCPA charges against company employees.
Another very interesting and significant picture emerges when analyzing actual DOJ individual FCPA prosecutions based on whether the individual charged was employed by or otherwise associated with an issuer or a private business organization.