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Individual FCPA Prosecutions – The Human Element

silo

As highlighted in this post, Judge Kenneth Hoyt (S.D. Tex) recently granted Paulo Casqueiro-Murta’s motion to dismiss Foreign Corrupt Practices Act (and related charges).

Judge Hoyt found, not just one, not just two, not just three, but four separate legal reasons for granting the dismissal. Moreover, because of these various reasons, Judge Hoyt found it unnecessary to decide Murta’s motion to dismiss based on a violation of the Speedy Trial Act.

In other words, it was a resounding victory for Murta.

However, victories as a defendant in a criminal case come at a high cost.

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Another Enforcement Action Involving Ecuador’s Seguros Sucre

seguros

From time to time, there are certain Foreign Corrupt Practices Act enforcement actions in which the core allegations just seem to “keep on giving” and spawn several related enforcement actions.

A prime example were the many FCPA (and related) enforcement actions involving Haiti Teleco from approximately ten years ago (see here) and the many recent enforcement actions concerning Venezuela’s PDVSA.

Enforcement actions concerning Ecuador’s Seguros Sucre S.A. (“Seguros Sucre”), an alleged state-owned insurance company and “instrumentality” of the Ecuadorian government are beginning to add up.

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Court Dismisses FCPA Charges Based On Lack Of Jurisdiction, Lack Of Due Process, Vagueness, And Statute Of Limitation Issues

Dismissed

As highlighted in this prior post in September 2019 the DOJ announced the unsealing of a criminal indictment against (among others) Paulo Casqueiro-Murta in connection with an alleged bribery scheme involving Venezuela’s state-owned and state-controlled energy company, PDVSA.

According to the DOJ, Murta (a citizen of Portugal and Switzerland) provided financial services to various co-defendants (including former employees of PDVSA) in connection with various bribery schemes and he was charged with directly violating or assisting others in violating the FCPA and money laundering laws.

Recently, Judge Kenneth Hoyt (S.D. Tex) granted Murta’s motion to dismiss the charges based on lack of jurisdiction, lack of due process, vagueness, and statute of limitation issues.

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In Connection With 2019 Ericsson Enforcement Action, DOJ Criminally Charges Former Ericsson Employee

Bereket

As highlighted in this prior post, in late 2019 Swedish telecom company Ericsson (a company with American Depositary Shares traded in the U.S.) resolved a $1.06 billion net FCPA enforcement action concerning conduct in Djibouti, China, Vietnam, Kuwait, Indonesia, and Saudi Arabia.

Regarding Djibouti, the enforcement action alleged that Ericsson (through certain subsidiaries and agents) provided approximately $2,100,000 in bribe payments to, and for the benefit of, foreign officials in Djibouti, including a high-ranking government official in the executive branch of the Djibouti government who had influence over decisions made by a state-owned telecommunications company and the CEO of the state-owned telecom company, in order to secure an improper advantage in order to obtain and retain business with the Telecom Company and to win a contract valued at approximately €20,300,000 with the Telecom Company.”

In connection with this prong of the Ericsson enforcement action, the DOJ announced yesterday that Afework “Affe” Bereket (pictured – a dual citizen of Ethiopia and Sweden) was criminally charged with one count of conspiracy to violate the FCPA’s anti-bribery provisions and one count of conspiracy to commit money laundering “for his alleged role in a scheme to pay approximately $2.1 million in bribes to high-level government officials in the Republic of Djibouti and conspiring to launder funds to promote the scheme.”

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US v. Bescond Addresses “Fugitive Disentitlement”: Potential Game Changer For Foreign-Based Defendants Facing US Charges

Judicial Decision

A guest post from DLA Piper attorneys John Hillebrecht, Jessica Masella, Olivia Tourgee and Jennifer Delasco.

In recent years, US prosecutors have increasingly pushed the envelope in bringing criminal charges against non-US professionals who live and work abroad and who may have never set foot in the United States, including for alleged violations of the Foreign Corrupt Practices Act, trade sanctions, the antitrust laws, and other statutes and regulations with extraterritorial implications.

Typically, pursuant to the fugitive disentitlement doctrine, these non-US citizens have not been allowed to challenge such charges unless and until they physically surrender to authorities in the US.

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