Friday Roundup
Two years ago today, you just can’t make this stuff up, no new trial for Bourke, more offensive use of the FCPA, and ICE is not melting away. It’s all here in the Friday roundup.
Two Years Ago Today
Two years ago today, the Senate held a hearing titled “Examining Enforcement of the Foreign Corrupt Practices Act.” (See here for the full hearing transcript. I had the pleasure to testify at the hearing (see here for my written testimony). I went to Capital Hill without an agenda and on behalf of no one but myself. My testimony represented my beliefs and I was proud of what I said then and I remain proud today.
You Just Can’t Make This Stuff Up
Try as you might, you just can’t make up a better example of the double-standard I frequenlty write about. (See here for numerous other prior posts).
Our FCPA enforcement agencies are bringing enforcement actions against companies for conduct that includes providing $600 bottles of wine, Cartier watches, cameras, kitchen appliances, business suits, and executive education classes to individuals employed by foreign companies that are allegedly state-owned or state-controlled. (These are all allegations found in recent FCPA enforcement actions).
Assistant Attorney General Lanny Breuer recently declared (see here) that “we in the United States are in a unique position to spread the gospel of anti-corruption.”
Against this backdrop, the Wall Street Journal reports (here) that President Obama’s fundraising advisers “have urged the White House to accept corporate donations for his January 2013 inaugural celebration rather than rely exclusively on weary donors who underwrote his $1 billion re-election effort.” Among the justifications put forward by the Obama team according to the Wall Street? The inauguration is “more of a civic event than a partisan political affair.”
Bourke Development
Perhaps this is finally the end of the FCPA enforcement action against Frederick Bourke. As noted in this previous post, in July 2009 Bourke was convicted by a jury for conspiring to pay bribes to Azerbaijan officials. At sentencing, Judge Shira Scheindin (S.D.N.Y.) sentenced Bourke to 366 days in prison, even though she commented that “after years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.”
An appeal to the Second Circuit followed, largely on knowledge issues. As highlighted in this previous post, in December 2011, the Second Circuit affirmed Bourke’s conviction. Bourke subsequently requested a new trial based on newly discovered evidence relating to alleged perjury of a key trial witness. Judge Scheindin denied Bourke’s request. Bourke then appealed the issue to the Second Circuit.
Earlier this week, in an order (here) the Second Circuit affirmed the trial court decision and rejected Bourke’s request for a new trial. In short, the Second Circuit concluded that Bourke failed to present newly discovered evidence or that the key trial witness in fact committed perjury.
As noted in this Bloomberg article, Bourke’s lawyers plan to ask the Second Circuit to consider the case again.
Offensive Use of the FCPA
Rarely does one hear of offensive use of the FCPA to accomplish a business objective. Usually it is the other way around – the FCPA thwarts a business objective such as acquiring a foreign target, not hiring the foreign agent who says he knows a way to get that lucrative contract, etc.
But with increasing frequency, the FCPA is being used offensively (at least it seems). See this prior post for offensive use of the FCPA in the on-going Wynn-Okada dispute.
Recently Chris Matthews (Wall Street Journal Corruption Currents) has been reporting (here, here, and here) on seemingly offensive use of the FCPA in regards to CEDC Distribution Company, a company that has previously disclosed FCPA scrutiny. (See here for the prior post).
In short, Russian billionaire Roustam Tariko, the founder of CEDC rival Russian Standard vodka brand and CEDC’s largest shareholder, claimed that CEDC executives themselves were the subject of FCPA investigation.
Tariko’s claims prompted CEDC to issue this letter to shareholders that stated, in pertinent part, as follows.
“As you may be aware, earlier this week, Mr. Roustam Tariko, Chairman of Russian Standard, published a letter to CEDC investors that has created anxiety and confusion in the marketplace. What you may not be aware of is that Mr. Tariko’s letter was published less than 48 hours after the CEDC Board voted 5 to 3 (the 3 being Mr. Tariko and his Board designees) against Mr. Tariko’s request that he be given total control over CEDC’s operations and finance. This request follows repeated attempts by Russian Standard to remove the interim CEO. The purpose of this letter is to provide you with (1) an explanation as to why we did not give Mr. Tariko complete control over CEDC last weekend when he asked us to; (2) correct information regarding FCPA matters; (3) a current and accurate picture of the CEDC/RTL Strategic Partnership; and (4) information as to the steps we are taking to address the challenges facing CEDC.”
ICE is Not Melting Away
Previous posts here and here (among others) have the detailed the unsuccessful peition by Instituto Constarricense de Electricidad of Costa Rica (“ICE”) for victim status of Alcatel-Lucent’s wide-ranging bribery scheme. The petition followed the December 2010 announcement that Alcatel-Lucent and certain subsidiaries agreed to resolve a wide-ranging FCPA enforcement action, including conduct in Costa Rica involving payments to ICE officials. Even though ICE acknowledged that “three disloyal and corrupt [ICE] Directors and two disloyal and corrupt employees” were the recipients of Alcatel Lucent’s bribe payments, it nevertheless claimed it was a victim because the corrupt activities of Alcatel-Lucent caused the company “massive losses” and “catastrophic harm.”
After several unsuccessful 11th Circuit appeals, ICE has petitioned the Supreme Court to hears it case (see here). The question presented for review is as follows. “Whether a crime victim who is denied rights conferred by the federal Crime Victims’ Rights Act has a right to directly appeal the denial of those rights.”
*****
A good weekend to all.
Friday Roundup
Briefing complete, an isn’t it ironic follow-up, and going for the gold. It’s all here in the Friday roundup.
Briefing Complete In Historic “Foreign Official” Challenge
This previous post highlighted the appeal of Carlos Rodriguez and Joel Esquenazi to the 11th Circuit on a host of issues, including whether the trial court erred as a matter of law in its jury instruction regarding what constitutes an “instrumentality” of a foreign government – and thus who are “foreign officials” under the FCPA. As noted in the post, this is a historic appeal, the first time in the FCPA’s history that “foreign official” will be squarely before an appellate court. This previous post highlighted the DOJ’s response brief.
Yesterday lawyers for Rodriguez and Esquenazi filed reply briefs here and here.
Among other things, Rodriguez’s brief argues as follows. “This Court should reject the Government’s assertion that the OECD Anti-Bribery Convention requires that this Court affirm the jury instruction incorporating the government function interpretation. […] Before the United States adopted the OECD 1997 Convention on Combating Bribery in 1998, the United States had no obligation to prohibit foreign bribery. Thus, the law of nations sheds no light on what Congress intended when it adopted the relevant definition of foreign official in 1977. In 1998, when Congress amended the FCPA in light of the OECD’s Convention, Congress did not add “public enterprise” to the definition of foreign official. This Court should not apply terms from the Convention that Congress chose not to adopt into the FCPA.”
Among other things, Esquenazi’s brief argues that the “government’s untethered definition of instrumentality cannot stand,” “the government engages in a selective and misleading reading of the FCPA’s legislative history,” and that the “government’s vehemence proves too much.” As to the later point, the brief states as follows. “The Government spends a significant part of its brief arguing that its broad (and fatally flawed) definition of “instrumentality” is crystal clear. First, few statutory terms have received such extensive governmental resuscitation efforts. Second, there is a difficult-to-ignore, growing consensus among observers (including two former United States Attorneys General) that the Government is misreading “instrumentality.”
Regarding my “foreign official” declaration (here) that the DOJ is seeking to exclude from the record, the brief states as follows. “The Government protests Esquenazi’s citation to Professor Michael J. Koehler’s declaration addressing the legislative history of the FCPA, which was filed in United States v. Carson. Aside from the analysis contained in the Koehler declaration, the substance of the declaration is the legislative history of the FCPA. The Court can surely take notice of legislative history, and evaluate the utility and accuracy of Professor Koehler’s declaration for itself. But the Government’s claim that the declaration of a professor filed in another criminal proceeding and under penalty of perjury is somehow of lower status than a law review article reviewed by law students strains credulity.”
David Simon (Foley & Lardner – here) leads the appellate team for Rodriguez. Markus Funk (Perkins Coie – here) leads the appellate team for Esquenazi.
Isn’t It Ironic Follow-Up
In this prior post, I asked isn’t it ironic, don’t you think, that while the U.S. is bringing enforcement actions against companies for conduct that includes providing $600 bottles of wine, Cartier watches, cameras, kitchen appliances, business suits, and executive education classes to individuals deemed “foreign officials,” the U.S. has legitimized corporate influence over government in this country? I noted that this uncomfortable truth will be clear on display as the elections unfold.
Sure enough, earlier this week, the Wall Street Journal had a page one article “Movie Mogul’s Starring Role in Raising Funds for Obama” (here) detailing Jeffrey Katzenberg’s extensive political contributions and close ties to President Obama. Hosting a dinner that raised $15 million for President Obama. Check. Writing a $2 million check to jump start a super PAC supporting President Obama. Check. A planned $40,000 per person dinner with President Obama. Check.
The WSJ article notes that “Mr. Katzenberg’s fundraising prowess has earned him access and a role as the informal liaison between Hollywood and the White House, as the industry continues seeking government help against online piracy” among other issues.
If President Obama was a foreign official and expensive wine was served at the dinner, such allegations might very well find their way into an FCPA enforcement action … and have already. If the super PAC was a charitable donation and President Obama a foreign official, such allegations might very well find their way into an FCPA enforcement action … and have already.
Isn’t it ironic don’t you think?
But the irony does not stop there.
As noted in the article, among the access that Katzenberg had was attending a State Department lunch during the recent U.S. visit of China’s presumed future leader Xi Jinping. The lunch occurred in the context of Hollywood’s eagerness to tap into the lucrative Chinese market.
As noted in this previous post, it was widely reported this past spring that the SEC has sent letters of inquiry to several Hollywood studios, including Katzenberg’s DreamWorks Animation, seeking information about potential inappropriate payments and how the companies interact with certain government officials in China.
Isn’t it ironic don’t you think?
Going for the Gold
It’s interesting to witness the lengths FCPA Inc. will go to market its compliance services. After dozens of London Olympic, Bribery Act, FCPA, are you prepared type pieces, up next is the Winter Olympics in Sochi, Russia, and with that a marketing opportunity. This recent law firm piece states as follows. “With the conclusion of the 2012 Summer Olympics in London, the world’s eyes will soon turn to Sochi, the Black Sea resort city in Russia, which will host the 2014 Winter Olympics. In addition to serving as the backdrop for the usual feats of athletic prowess and national pride, the Sochi games may also be fertile ground for prosecutions under the United States’ Foreign Corrupt Practices Act (FCPA). The U.S. government’s actions in this setting will serve as a signal to any company doing business abroad that it must be proactive in ensuring compliance with the FCPA.”
As Above the Law recently observed here, the FCPA “freak-out session is entertaining to watch.”
*****
A good weekend to all.
DOJ Files Response Brief In Historic 11th Circuit “Foreign Official” Appeal
This previous post detailed the appeal of Carlos Rodriguez and Joel Esquenazi to the 11th Circuit on a host of issues, including whether the trial court erred as a matter of law in its jury instruction regarding what constitutes an “instrumentality” of a foreign government – and thus who are “foreign officials” under the FCPA. As noted in the post, this is a historic appeal, the first time in the FCPA’s history that “foreign official” will be squarely before an appellate court. Certain of the appellant’s arguments are based on my “foreign official” declaration – see here.
Earlier today, the DOJ filed its response brief – here.
In summary, the DOJ states as follows as directly relevant to “foreign official.”
“The district court’s instructions on the meaning of ‘instrumentality of a foreign government’ were correct. The instructions stated that an instrumentality must perform a governmental function and provided a nonexhaustive list of relevant factors for the jury to consider in deciding whether Teleco was an instrumentality of the government of Haiti. Courts have used similar tests to determine whether an entity is an instrumentality in other contexts and relied on many of the same factors. The evidence sufficiently established that Teleco was an instrumentality of Haiti during the relevant time period. The government, through its national bank, owned 97% of Teleco’s shares, and, if Teleco had been profitable, those profits would have accrued to the government and the national bank. Because it was not, the national bank subsidized Teleco. Haiti’s president and high-level ministers controlled Teleco through their appointment of Teleco’s board of directors and general director. Teleco’s status as a government instrumentality is also reflected in Haitian law that subjected Teleco officials to its prohibitions against official corruption. Defendants’ narrow construction of the term ‘instrumentality’ is inconsistent with the terms of the FCPA and Congressional intent. The prohibitions in the FCPA are expressed broadly and reflect Congress’s purpose to combat the problem of pervasive foreign bribery. Defendants’ interpretation of the statute is also inconsistent with the provisions of an international treaty and with Congress’s explicitly-stated intent, when amending the FCPA, to conform the statute to the treaty. The term ‘instrumentality’ is also not unconstitutionally vague. It provided fair notice that defendants’ bribery scheme, which involved intentional conduct and had no innocent explanation, was illegal. Moreover, defendants cannot complain that they were left guessing about the legality of their actions when they could have requested an opinion on that question from the Attorney General but did not do so.”
“The instructions on the knowledge element of the FCPA were not plainly erroneous. The government was not required to prove that defendants knew that the recipients of the bribes were “foreign officials” under the statute’s legal definition, and the instructions, when viewed as a whole and in the context of the entire trial, made clear that the jury had to find that defendants believed they were bribing an employee of a foreign government instrumentality. Overwhelming evidence supported the jury’s finding on that element. Defendants applied for political risk insurance, which was needed only because a foreign government was a party to the Terra-Teleco contract, and they repeatedly referred to Teleco as a government-owned entity during the application process. Esquenazi also testified that Teleco was government-owned at a deposition. The court did not err in giving a deliberate ignorance instruction. It was appropriate as to the FCPA counts without a showing that defendants purposely avoided learning all the facts because the statute explicitly equates knowledge of a circumstance with awareness “of a high probability” that the circumstance exists. […] The evidence also supported the instruction. Despite the highly suspicious circumstances surrounding the payments that Rodriguez authorized to the third-party intermediaries, he claimed that, although he was in charge of Terra’s finances, he did not know their true purpose. Even if the court erred in giving the instruction, any error was harmless because the evidence also established that Rodriguez knew that the payments to the intermediaries were bribes.”
As to my “foreign official” declaration, the DOJ states as follows.
“Defendants rely on a 144-page declaration by Professor Michael J. Koehler that was filed on behalf of the defendants in Carson […]. That declaration is not part of the record in this case, and this Court should not consider it. Although defendants suggest that this Court may take judicial notice of the declaration because it relates to legislative history, the declaration selectively reviews the legislative history and draws inferences in support of a defense motion to dismiss the indictment. As such, it is not necessarily the statement of a disinterested expert, it was not reviewed as a scholarly article, and it was never subject to impeachment in the case below. Even the district court in Carson did not rely on the declaration because it concluded that ‘resort to the legislative history of the FCPA [was] unnecessary.’ […] If the Court is inclined to consider the Koehler affidavit, the government asks the Court to similarly consider the declaration of FBI Special Agent Brian Smith, also filed in Carson, that discusses references to SOEs in the legislative history.” See here for a copy of Smith’s declaration.
[In Kiobel v. Royal Dutch Shell, the Second Circuit stated as follows concerning reliance of professor expert declarations filed in another case being used in the case – “we fail to see how statements made in an affidavit, under penalty of perjury, are any less reliable than published works whose accuracy is confirmed only by efforts of the student staff of law journals.”]
Lindsey Manufacturing Case Officially Over
As detailed in this prior post, in May 2011, Lindsey Manufacturing Company (a privately held manufacturer of electrical transmission and related products that employs approximately 100 individuals) and Keith Lindsey (President) and Steven Lee (Chief Financial Officer) were convicted after a five week trial by a federal jury in the Central District of California of one count of conspiracy to violate the FCPA and five counts of FCPA violations. Reacting to the guilty verdicts, Assistant Attorney General Lanny Breuer stated in this release as follows. “Today’s guilty verdicts are an important milestone in our Foreign Corrupt Practices Act (FCPA) enforcement efforts. Lindsey Manufacturing is the first company to be tried and convicted on FCPA violations, but it will not be the last.”
As detailed in this prior post, in December 2011, the DOJ’s “important milestone” was erased when Judge Howard Matz, after months of legal wrangling, vacated the convictions and dismissed the indictment. See here for Judge Matz’s ruling. In his ruling, Judge Matz summed up the government’s conduct as an “unusual and extreme picture of a prosecution gone badly awry.”
The DOJ appealed Judge’s Matz’s ruling to the 9th Circuit. Earlier today, the DOJ filed a motion for voluntary dismissal of the appeal.
Jan Handzlik (Venable – here) represented Lindsey Manufacturing and Lindsey and Janet Levine (Crowell & Moring – here) represented Lee.
In an e-mail statement, Handzlik stated as follows. “By filing today’s dismissal motion, the government has dropped its prosecution of the Company and its officers, and will also end its efforts to forfeit about $24 million from the Company. By deciding not to pursue its appeal of Judge Matz’ dismissal order, the government has ended the case.” Handzlik further stated as follows. “This is a great day for the fair administration of justice. We couldn’t be happier for Keith, Steve and the 110 loyal, hard-working employees of Lindsey Manufacturing Company. This dismissal further vindicates Dr. Lindsey’s belief in our system of justice and in his innocence. Keith and Steve were steadfast in their belief that the government had not played fair and that the truth would come out.”
“Foreign Official” Is A “Significant Claim of First Impression” Not Merely An “Academic Discussion”
It is tough to distill the logic of this post yesterday on the FCPA Blog.
Of course, as stated in the post, “putting any law to the test … always requires ‘putting human beings through the trial and error of our criminal justice system.'” This is to state the obvious. But to question challenging (in the absence of any case law of precedent) a key element of the most important U.S. law governing international business transactions – and in the process advancing false information regarding FCPA enforcement – is off-base.
The FCPA Blog states as follows. “Other FCPA defendants have gone to trial and won. That’s a sign of health in our criminal justice system. But — and here’s our point today — those victorious defendants always won on grounds other than defects in the FCPA itself.”
“Always won on grounds other than defects in the FCPA itself?”
When a judge grants a motion to dismiss or a motion for acquittal or when a jury returns a not guilty verdict or fails to reach a verdict, by definition the judge or jury has concluded that the DOJ has not satisfied its burden of proof as to the FCPA elements. In the Africa Sting case alone, Judge Leon (as noted in this prior post) dismissed charges against a defendant under 78dd-3 and called the DOJ’s position “novel.” Also in the Africa Sting case and as demonstrated by this prior post from the jury foreman, one defendant – in the eyes of most of the jurors – was “clearly innocent” and the jury had significant concerns with the corrupt intent element as to the other defendants found not guilty or on which the jury failed to reach a verdict.
As noted in this prior post, the scorecard when an enforcement agency is put to its burden of proof on the enforcement theory that payments outside the context of foreign government procurement fall under the FCPA’s anti-bribery provisions is: US – 1; Defendants – 3; or if you prefer US – .5; Defendants – 3.5 (recognizing that the 5th Circuit decision in Kay is equivocal). As noted in this previous post, several other FCPA defendants have prevailed when putting the enforcement agencies to their burden of proof.
And it is not just individual FCPA defendants who have prevailed in trials when putting the DOJ to its burden of proof. Dismiss the Lindsey Manufacturing end-result if you like given that Judge Matz threw out the case on prosecutorial misconduct grounds (see here for the prior post). However, as noted in this prior post, in the other only apparent instance in FCPA history of a corporate defendant putting the DOJ to its burden of proof, Harris Corp. (and certain of its executives) prevailed when the judge granted their motion of acquittal after the DOJ’s case. As noted in the prior post, the judge reportedly stated that the DOJ failed to show any intent by the defendants to enter into a criminal conspiracy.
In short, while I have respect for the FCPA Blog and much of its writing, it is just plain wrong to assert that “victorious [FCPA] defendants always won on grounds other than defects in the FCPA itself.”
Sure, challenging the DOJ and testing one’s innocence (see here for the prior post) involves an element of risk and can impact real lives. But is the answer – as the FCPA Blog seems to advance – for FCPA individual defendants (like the vast majority of corporate defendants) to roll over and play dead regardless of the intent of Congress (the law maker) in passing the FCPA? If your answer is yes, I submit that answer leads to broader harm and more significant policy concerns than specific individuals testing innocence claims.
The FCPA Blog is similarly off-base when it stated, not once but twice in the past few days (see here and here) that in the Carson case Judge Selna “found” that neither side could support its position about foreign officials in the FCPA’s legislative history. The FCPA Blog is correct that Judge Selna in his ruling (see here) declined to review the FCPA’s legislative history. However, the FCPA Blog then states that Judge Selna “in a footnote [said] that neither the DOJ nor the defendants could point to any quotes in the legislative history that supported their arguments.”
The relevant footnote (13) states as follows.
“Defendants include a comprehensive review of the legislative history of the FCPA with their motion. (See Decl. of Prof.Michael J. Koehler, Feb. 2, 2011, ECF No. 305.) The Government argues that “nowhere in the vast review of legislative history can the defendants point to a single quote that supports the position that the FCPA should not apply to employees of [state-ownedenterprises].” (Opp’n at 35.) Defendants reply that “the inverse is equally true, that is, the Government ‘cannot point to a singlequote’ from a member of Congress that supports the position that the FCPA should apply to employees of [state-owned enterprises] (Reply at 17).”
Where in this footnote is there a judicial finding?
Yesterday’s FCPA Blog post concludes as follows.
“How will the 11th Circuit rule when it becomes the first appellate court to consider who’s a ‘foreign official’ under the FCPA? No one knows. But Esquenazi and Rodriguez face long odds. Few federal criminal defendants win on appeal — only about 5%. There’s no existing appellate record that points to potential success. And there’s nothing from any FCPA trial to give Esquenazi and Rodriguez (or any other defendants) much hope of winning on the ‘foreign official’ question. Maybe they’ll somehow beat the odds. We hope that happens. Not because we believe the FCPA is defective. But because Esquenazi and Rodriguez are more than part of an academic discussion about who’s a ‘foreign official.’ They’re real human beings.”
I will conclude as follows.
“There’s nothing from any FCPA trial to give Esquenazi and Rodriguez (or any other defendants) much hope of winning on the ‘foreign official’ question.”?
Perhaps the FCPA Blog is unaware (as noted in this prior post) that in the Carson “foreign official” challenge, Judge Selna issued an order (here) regarding certain jury instructions including “knowledge of status of foreign official” in which he instructed as follows – “the payment or gift at issue … was to (a) a person the defendant knew or believed was a foreign official or (b) any person and the defendant knew that all or a portion of such money or thing of value would be offered, given, or promised (directly or indirectly) to a person the defendant knew or believed to be a foreign official. Belief that an individual was a foreign official does not satisfy this element if the individual was not in fact a foreign official.” Prior to the Carson “foreign official” challenge, I don’t believe that jury instruction (or anything close to it) had ever been given.
Perhaps the FCPA Blog overlooked the transcripts in the O’Shea trial in which Judge Hughes (as will be explored in a future post) allowed evidentiary testimony as to the nature and status of the Mexican entity at issue in the case and incorporated OECD Commentary 15 issues into the jury instructions. After the testimony, Judge Hughes stated as follows. “The Government can’t say the Convention is part of American law; but when we don’t like it, we are going to ignore it. It has to bind the Government, or it can’t.” Prior to the O’Shea “foreign official” challenge, I don’t believe that a Judge ever incorporated OECD Commentary 15 issues into a jury instruction.
[Commentaries 14 and 15 to the OECD Convention are set forth below.
14. A “public enterprise” is any enterprise, regardless of its legal form, over which a government, or governments, may, directly or indirectly, exercise a dominant influence. This is deemed to be the case, inter alia, when the government or governments hold the majority of the enterprise‟s subscribed capital, control the majority of votes attaching to shares issued by the enterprise or can appoint a majority of the members of the enterprise‟s administrative or managerial body or supervisory board.
15. An official of a public enterprise shall be deemed to perform a public function unless the enterprise operates on a normal commercial basis in the relevant market,i.e., on a basis which is substantially equivalent to that of a private enterprise, without preferential subsidies or other privileges.]
As the academic who has been most vocal on the “foreign official” issue in my writing, scholarship and in my “foreign official” declaration (here), I have raised this issue precisely because it is affecting real human beings. One can only assume that various members of Congress (from both parties) have raised questions about the “foreign official” issue not because Congress occupies itself with “academic discussions,” but because Congress is concerned about how law enforcement affects real human beings.
Moreover, the implicit suggestion from the FCPA Blog post that real human beings are being used as pawns in an “academic discussion” ignores the obvious fact that those real human beings who have challenged the DOJ’s position on “foreign official” have engaged real lawyers who have real fiduciary duties to their real clients and that those real lawyers and their real clients are the ones making the real decisions as to litigation strategy.
“Foreign official” as an “academic discussion”?
Apparently not in a joint motion filed earlier this week by the defendants and the DOJ in the Haiti Teleco appeal in which the parties jointly request additional time for briefing. The joint motion says that the foreign official issue is a “significant claim of first impression.”