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Slumbering Individual Enforcement Actions

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Most in the Foreign Corrupt Practices Act space learn when the DOJ announces criminal FCPA charges against individuals. Thereafter, the tendency (including by myself) is to sort of forget about many of the individual cases.

However, recently I examined the dockets for all individuals criminally charged with FCPA offenses since January 1, 2017 and was surprised to learn that a meaningful percentage of these cases are slumbering with no substantive activity recorded in quite some time.

Thus, when viewing DOJ FCPA individual enforcement action statistics it is important to keep in mind that many of these cases are slumbering and are not being actively prosecuted.

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DOJ Individual Actions: The Strange Public – Private Divide

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These pages track all sorts of Foreign Corrupt Practices Act statistics.

Some of the statistics are “inside baseball” like and other statistics (such as the long time periods associated with FCPA scrutiny or the general lack of individual enforcement actions in connection with most corporate enforcement actions) raise significant public policy issues and/or undermine government rhetoric.

The statistic discussed in this post fits all three categories: it is equal parts “inside baseball,” it raises significant public policy issues, it undermines government rhetoric, and moreover it is just plain strange (or perhaps it isn’t).

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A Focus On DOJ Individual FCPA Enforcement Actions

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This recent post focused on SEC individual FCPA actions in 2023 and historically.

Today’s post highlights various facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2023 and historically.

The key word above is FCPA offenses.

Some in the FCPA space include enforcement actions containing non-FCPA charges (often money laundering charges against alleged “foreign officials” or with increasing frequency money laundering charges against alleged bribe payors – see here) related to an FCPA enforcement action as an individual FCPA enforcement action. While it is fine to track such enforcement actions, calling them FCPA enforcement actions is factually false. (In fact, as highlighted in this prior post, approximately 55% of enforcement actions in recent years on the DOJ’s FCPA website are not actual FCPA enforcement actions).

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DOJ Announces Individual Enforcement Action In Connection With A Bribery Scheme Involving The Honduran National Police

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Last week the DOJ announced the unsealing of an indictment criminally charging:

Carl Alan Zaglin (the owner of a Georgia-based manufacturer of law enforcement uniforms and accessories);

Francisco Roberto Cosenza Centeno (former Executive Director of the Comité Técnico del Fideicomiso para la Administración del Fondo de Protección y Seguridad Poblacional (TASA) a Honduran governmental entity that procured goods for the Honduran National Police); and

Aldo Nestor Marchena (a dual citizen of the U.S. and Peru)

for their alleged participation in a scheme to pay and conceal bribes to Honduran government officials to secure contracts to provide uniforms and other goods to the Honduran National Police.

Although not named in the indictment, the “Georgia company” is presumably Tru-Spec (owned by Atlanco, formerly Atlanta Army Navy Company).

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Let’s Analyze This For A Minute

Women Thinking

As highlighted in this post, earlier this week Acting Assistant Attorney General Nicole Argentieri gave an FCPA speech in which she stated, among other things, as follows.

Our corporate enforcement policies encourage companies to voluntarily self-disclose misconduct and cooperate for good reason: It allows us to build stronger cases against culpable individuals more quickly. As searching as our investigations may be, there are some cases that we may never learn about absent a company’s voluntary self-disclosure. And we require those disclosures to be timely so we can preserve evidence more easily, carry out our own investigation into wrongful conduct, interview witnesses before memories fade, and prosecute individuals or other entities before the expiration of the statute of limitations.”

DOJ officials have been saying the same thing for years.

But, let’s analyze this for a minute.

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