Foreign Corrupt Practices Act jury trials are rare.
Therefore, FCPA jury instructions are also rare.
Highlighted below are certain portions of the jury instructions from the recent trial of Roger Ng (a former managing director at Goldman Sachs) was who convicted by a jury of FCPA and related offenses for paying bribes to various Malaysian and Abu Dhabi officials in connection with 1Malaysia Development Berhad (1MDB), Malaysia’s state-owned and state-controlled investment development company.
Willfully
“Certain allegations in the Indictment require that in order to sustain its burden of proof, the government must prove that a defendant acted “willfully.” Willfully means to act knowingly and purposefully, with an intent to do something the law forbids; that is to say, with a bad purpose either to disobey or to disregard the law. However, the government need not prove that the defendant knew that he was breaking any particular law or any particular rule or was aware of any particular law or particular rule. The government must only show that the defendant was aware of the generally unlawful nature of his acts.”
“Corruptly” and “Willfully”
“An act is corruptly done if it is done voluntarily and intentionally and with a bad purpose or evil motive of accomplishing either an unlawful end or result, or a lawful end or result but by some unlawful method or means. The term “corruptly” in the FCPA means that the offer, payment, or promise was intended to induce a foreign official to misuse his or her official position.
I have already defined the term “willfully,” and you should apply that definition here. I add only that the individual need not have been aware of the specific provision of the law that he is charged with violating, or any other specific provision.”
Anything of Value
“A “thing of value” can take any form, including cash, check, wire transfer, gifts, donations, contributions, or anything else. It is not required that the individual provide or offer the thing of value himself. Rather, an individual who engages in bribery of a foreign official indirectly, through any other person or entity, is liable under the FCPA just as if the individual himself had engaged in the bribery directly. Thus, if the individual authorized another person to pay a bribe, that authorization alone is sufficient for you to find that this element has been proved.
Furthermore, it is not necessary that the payment actually take place. Instead, it is the offer or the authorization that completes the crime. This element is satisfied if you find that the individual promised or authorized an unlawful payment, even if you believe that the payment was not actually made. It is sufficient simply if the individual believed that a bribe would be offered or paid or that he promised or authorized the offer or payment.”
Foreign Official
“An “instrumentality” of a foreign government is an entity controlled by the government of a foreign country that performs a function the government treats as its own. The parties have stipulated that 1MDB, IPIC, and Aabar were each controlled by a foreign government, and each performed a function that the foreign government treated as its own.”
Obtain or Retain Business
“Obtain business” has its normal meaning, that is, to get, to acquire, or to secure a person or company’s business. “Retain business” also has its normal meaning, that is, to keep or continue to have a person or company’s business. It is not necessary that any person or company actually obtained or retained any business as a result of the unlawful offer, payment, promise, or gift, only that the defendant intended to assist the issuer, Goldman Sachs Group, in obtaining or retaining business for or with any person or company.”
Internal Controls
“Under the FCPA, a system of internal accounting controls includes both controls to ensure that a company’s financial statements are prepared in conformity with generally accepted accounting principles and controls to address the aspect of management stewardship responsibility that provides shareholders with reasonable assurances that the business is adequately controlled. Internal accounting controls under the FCPA therefore include controls that help ensure that an issuer’s financial transactions are executed as authorized by management and that access to the company’s assets is permitted only in accordance with management’s authorization.
[…]
To “circumvent” means to avoid a restrictive problem, rule, or other restriction, especially by clever and sometimes dishonest means. I remind you that the government need not prove that the defendant actually violated the FCPA’s internal accounting controls provision, the unlawful act charged as the object of the conspiracy in Count Two. Moreover, the government does not need to prove that Goldman Sachs Group had a particular internal accounting control or system of controls in place that the defendant intended to circumvent because, as I previously instructed you, it is not a defense to a conspiracy charge that the object of the conspiracy could not be achieved. Rather, what the government must prove beyond a reasonable doubt is that the purpose of the conspiracy was to violate the FCPA’s internal accounting controls provision and that the defendant knowingly and intentionally joined that conspiracy.”
