A Focus On The FCPA’s Local Law Affirmative Defense
This post highlighted the recent ruling in U.S. v. Aguilar that employees of Pemex Procurement International Inc. (PPI) – a wholly-owned affiliate of PEMEX – are not “public servants” for purposes of the relevant Mexican law.
After the ruling, Aguilar’s counsel (Quinn Emanuel) moved “for a partial judgment of acquittal on the money laundering conspiracy count, insofar as it asserts that Mr. Aguilar conspired to launder money in connection with (1) violations of Mexican antibribery law and (2) violations of the Foreign Corrupt Practices Act (FCPA) involving alleged payments to PPI employees.
In The Aguilar Trial, Judge Rules That Employees Of A Wholly-Owned Affiliate Of PEMEX Are Not “Public Servants”
Last month, a rare Foreign Corrupt Practices Act trial began in New York.
The case is U.S. v. Javier Aguilar. (See here for the prior post detailing the charges and here for an article providing an overview of the trial).
Last week, with the trial nearing its conclusion, the judge in the case (Eric Vitaliano – E.D.N.Y.) issued a meaningful decision concluding that employees of Pemex Procurement International Inc. (PPI) – a wholly-owned affiliate of PEMEX – are not “public servants” for purposes of the relevant Mexican law.
In doing so, Judge Vitaliano rejected the DOJ’s position that an entity is state-owned by virtue of its parent corporation being state-owned and stated that the “government does not easily give up the ghosts” and was “grasp[ing] at the straw.”
Potpourri
An FCPA trial and not an FCPA trial.
An FCPA Trial
In the FCPA’s 45 years, there have been only 21 trials (based on my research).
The FCPA’s 22nd trial began this week in a courtroom in the Eastern District of New York.
The case is U.S. v. Javier Aguilar. (See here for the prior post detailing the charges).
As described in this article:
Judge Denies Aguilar’s Motion To Sever
As highlighted here, in September 2020 the DOJ announced that Javier Aguilar (a former employee of Vitol Inc.) was criminally charged for “his alleged participation in a five-year international bribery and money laundering scheme involving corrupt payments to Ecuadorian officials.” (In December 2020, Vitol resolved a net $90 million Foreign Corrupt Practices Act enforcement action for conduct in Brazil, Ecuador and Mexico – see here).
In December 2022, the DOJ filed a superseding indictment adding FCPA and related charges in connection with an alleged Mexican bribery scheme. The DOJ alleges that Aguilar “together with others, engaged in a bribery and money laundering scheme involving the payment of bribes to Mexican officials … in exchange for, among other things, securing improper advantages for Vitol in obtaining and retain business with PEMEX and PEMEX Procurement International.
Aguilar moved to sever the Mexico related charges in the Superseding Indictment from the Ecuador related charges. In summary fashion, Aguilar argued:
FCPA Defendant Wants To Know More About His Alleged Bribery
As highlighted here, in September 2020 the DOJ announced that Javier Aguilar (a former employee of Vitol Inc.) was criminally charged for “his alleged participation in a five-year international bribery and money laundering scheme involving corrupt payments to Ecuadorian officials.” (In December 2020, Vitol resolved a net $90 million Foreign Corrupt Practices Act enforcement action for conduct in Brazil, Ecuador and Mexico – see here).
In November 2020, Aguilar filed a motion for a bill of particulars. Generally speaking, a bill of particulars is a request by a criminal defendant for more detailed information about the criminal charges beyond those alleged in the actual charging document. As highlighted here, the judge denied the motion.
Aguilar recently filed a motion for a Second Bill of Particular which states in summary fashion: