As highlighted in this prior post, in August 2021 the DOJ announced that Naman Wakil, a Syrian national and U.S. lawful permanent resident, was “arrested in Miami on charges related to his alleged role in a scheme to bribe Venezuelan officials and launder funds to obtain contracts from Venezuela’s state-owned and state-controlled energy company, Petróleos de Venezuela S.A. (PDVSA), and Venezuela’s state-owned and state-controlled food company that purchased food for Venezuela, Corporación de Abastecimiento y Servicios Agrícola (CASA).”
Recently, Wakil (through his attorneys Stephen Binhak and Black Srebnick attorneys Howard Srebnick and Jackie Perczek) filed three motions.
The first motion is a motion to dismiss the indictment for failure to state an offense and states in summary:
“Pursuant to Federal Rule of Criminal Procedure 12(b), Defendant Naman Wakil files this Motion to Dismiss Indictment for Failure to State an Offense under the Foreign Corrupt Practices Act (“FCPA”). The Foreign Corrupt Practices Act is not an all-purpose corporate ethics statute. As the Fifth Circuit has explained: “It criminalizes only those payments that are intended to (1) influence a foreign official to act or make a decision in his official capacity, or (2) induce such an official to perform or refrain from performing some act in violation of his duty, or (3) secure some wrongful advantage to the payor.” United States v. Kay, 359 F.3d 738, 743 (5th Cir. 2004). Because the FCPA is a limited statute, an indictment charging an FCPA offense must sufficiently allege specific elements to survive a motion to dismiss.
In this case, the Indictment stretches the FCPA beyond its textual and intended boundaries and includes conduct that Congress affirmatively chose not to criminalize.
Given this background, even accepting the Indictment’s allegations as true, the Indictment fails for three reasons.
First, the Government has not sufficiently alleged the FCPA’s required “obtain or retain business” element. Second, the Government has not sufficiently alleged the FCPA’s required “corrupt intent” element. Third, even if the Government has sufficiently alleged the FCPA’s required “obtain or retain business” and “corrupt intent” elements, the FCPA’s express facilitation payment exception exempts certain of Wakil’s conduct from the FCPA, and the Government has failed to negate this exception.
As a result, the Court should dismiss the indictment.”
The second motion is a motion to dismiss certain counts of the indictment because they are duplicitous and time-barred by the statue of limitations and states in summary:
“Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(i), defendant Naman Wakil moves to dismiss Counts I and III of the Indictment because they are duplicitous in that they charge multiple conspiracies as one. In previous sworn filings submitted to Magistrate Judge Reid, two government agents from two different law enforcement agencies conceded that the conduct encompassed by Counts I and III, consisting of a “corrupt food scheme” and a “corrupt oil scheme,” comprise “two separate bribery and corruption schemes.” Because Counts I and III charge these two separate schemes as one overarching conspiracy, Counts I and III must be dismissed.
Additionally, because Counts I and III allege schemes that are time-barred under the applicable statute of limitations, at a minimum the Court should strike those schemes from the Indictment.
The reason for the government’s maneuvering seems clear. By the government’s own account, the two alleged “corrupt food schemes” occurred more than a decade ago. If charged as a “separate bribery and corruption scheme,” the alleged food scheme would be time-barred by the statute of limitations. Thus, it appears that the government has charged one conspiracy to bring the time-barred conduct into a larger overarching conspiracy in an effort to circumvent the statute of limitations.”
The final motion is titled “Motion to Dismiss, Suppress Evidence, and to Disqualify, and Request for a Taint Hearing” and states in summary:
“Pursuant to the Fourth Amendment to the United States Constitution, Rule 12 of the Federal Rules of Criminal Procedure, Wong Sun v. United States, 371 U.S. 471 (1963), and the protections of Simmons v United States, 390 U.S. 377 (1968), defendant Naman Wakil moves to suppress all evidence derived directly and indirectly from the search of email accounts email@example.com and firstname.lastname@example.org pursuant to a search warrant issued on January 30, 2020 […]
Additionally, because the prosecution team had access to attorney-client privileged communications between Wakil and the lawyers representing Wakil in the criminal investigation, including emails between Wakil and undersigned counsel Steve Binhak, this motion seeks to disqualify any member of the prosecution team who reviewed the privileged emails. If the taint from the government reviewing privileged communications irreparably infected the grand jury or the prosecution team, Wakil seeks dismissal of the indictment.”
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