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Second Circuit Affirms Ho’s FCPA And Related Convictions

Ho

As described in this prior post, in late 2018 Chi Ping Patrick Ho was found guilty at trial of Foreign Corrupt Practices Ac and money laundering violations in connection with alleged bribery schemes in Chad and Uganda on behalf of China Energy Fund Committee, an entity funded by CEFC China Energy Company Ltd.

This prior post outlined Ho’s arguments on appeal and the FCPA specific issues were presented as follows:  (1) “Whether the government, which repeatedly argued that Ho paid bribes on behalf of a Chinese company, presented legally sufficient evidence that he acted on behalf of a “domestic concern,” as required for a conviction under 15 U.S.C. § 78dd-2;” and (2) “Whether a defendant may be prosecuted for violating § 78dd-3 where (a) the grand jury determined that he was a “domestic concern,” but § 78dd-3 expressly does not apply to domestic concerns, and (b) the defendant was also indicted for violating § 78dd-2, but §§ 78dd-2 and 78dd-3 are mutually exclusive.”

In this recent decision, the Second Circuit rejected each of Ho’s challenges and affirmed his convictions.

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In A Setback For The DOJ, Judge Grants Hoskin’s Motion For Acquittal Of All FCPA Charges

Judicial Decision

This November 2019 post concerning the jury verdict in the long-running Foreign Corrupt Practices Act enforcement action against Lawrence Hoskins (the FCPA conduct Hoskins was found guilty of allegedly occurred between 2002 and 2004 and the trial took place in 2019 nearly 15 years later) noted that the jury verdict was not the final chapter in the enforcement action, just merely a development.

Indeed.

Earlier today in a setback for the Department of Justice and its FCPA theory of prosecution, Judge Janet Bond Arterton (D. Conn) granted Hoskin’s motion for acquittal on the seven FCPA charges he was convicted of by the jury (See here for the decision. The judge denied Hoskin’s motion for acquittal on the five money laundering charges he was convicted of by the jury).

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In An FCPA Issue Of First Impression, Judge Rules That Separate E-mails In Furtherance Of The Same Alleged Bribery Scheme Are Separate “Units Of Prosecution”

McNulty

As highlighted in this prior post, in connection with the Cognizant Technology Solutions Foreign Corrupt Practices Act enforcement action concerning obtaining various permits in India, the DOJ (and SEC) also charged Gordon Coburn (former President and CFO of the company) and Steven Schwartz (former Executive Vice President and Chief Legal and Corporate Affairs Officer) with various FCPA offenses.

Coburn and Schwartz are putting the government to its burden of proof and recently U.S. District Court Judge Kevin McNulty (D.N.J. – pictured) denied the defendants’ motion to dismiss. (See here). In doing so, the judge ruled on an FCPA issue of first impression – that being what is the appropriate “unit of prosecution” under the FCPA’s anti-bribery provisions. As discussed below, the judge concluded that separate e-mails – even if in connection with the same alleged bribery scheme – constitute separate violations of the FCPA’s anti-bribery provisions.

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New Article – The Foreign Corrupt Practices Act Jurisprudence Of Shira Scheindlin

Shira A. Scheindlin - Judge, Southern District of New York

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The Foreign Corrupt Practices Act is a top priority federal statute of significant importance to all businesses and individuals engaged in international commerce. Yet, despite its significance, few FCPA enforcement actions are subjected to judicial scrutiny and most federal court judges go their entire career without an FCPA case being placed on their docket.

However, Shira Scheindlin (who recently retired from being a judge on the U.S. District Court for the Southern District of New York) was an exception and during her time on the bench she refereed more disputed FCPA issues than any other federal judge in the FCPA’s 40+ year history.

My article “The Foreign Corrupt Practice Act Jurisprudence of Shira Scheindlin” recently published in the Syracuse Law Review (click here to download) analyzes the legal decisions of the FCPA’s most prominent jurist.

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Judge Denies Hoskins’ Motion To Dismiss Based On Violations Of Speedy Trial Act Rights And Fifth And Sixth Amendment Rights

Denied

Previous posts here and here highlighted the motion to dismiss filed by Lawrence Hoskins (a U.K. national criminally charged with FCPA offenses in 2013) based on violations of his Speedy Trial Act rights and his Fifth and Sixth Amendment rights.

Earlier this week, Judge Janet Bond Arterton (D. Conn.) denied the motion to dismiss paving the way for Hoskins’ trial to begin on October 16th.

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