This recent post highlighted the criminal convictions of former ComEd executives and associates on all counts charged, including conspiring to influence and reward the former Speaker of the Illinois House of Representatives in order to assist with the passage of legislation favorable to the electric utility company, in addition to multiple bribery and record falsification charges. (See here for the DOJ release).
It was noted that bribery of a state politician is not ordinarily the type of conduct that results in Foreign Corrupt Practices Act issues; however ComEd (a majority-owned indirect subsidiary of Exelon Corp) was an issuer (as was Exelon) and the most serious (from a sentencing and fine perspective) criminal charges the individuals were found guilty of were record falsification in violation of the FCPA.
Although outside the foreign bribery context, the individual convictions of FCPA books and records offenses is likely one of more high profile instances of criminal convictions of those provisions in the FCPA’s approximate 45 year history.
Set forth below are the relevant jury instructions issued by Judge Harry Leinenweber (N.D. Ill).
“Instruction 38
Counts Three, Four, Seven, and Nine of the indictment charge the defendants with falsifying books, records, and accounts of ComEd and Exelon. In order for you to find a defendant you are considering guilty of each particular count, the government must prove each of the following elements beyond a reasonable doubt.
- At the time of the alleged offense, ComEd and Exelon were issuers.
- The defendant falsified or caused someone else to falsify the books, records, or accounts of ComEd or Exelon as specified in the particular count of the indictment.
- The books, records, or accounts were of the type that were required to accurately and fairly reflect in reasonable detail the transactions and dispositions of the assets of ComEd or Exelon.
- The defendant acted knowingly and willfully, as defined in these instructions
[…]
Instruction 39
In Counts Three, Four, Seven, and Nine, the government has alleged that the defendants falsified books, records, or accounts. In order for each defendant to be found guilty, you must agree unanimously on which specific book, record, or account was falsified for each defendant as to each count, as well as all of the other elements of the crime charged.
Instruction 40
A person acts knowingly if he or she realizes what he or she is doing and is aware of the nature of his or her conduct, and does not act through ignorance, mistake or accident. In deciding whether the defendant acted knowingly, you may consider all of the evidence, including what the defendant did or said.
Instruction 41
A person acts willfully if he or she acts knowingly and with the intent to do something he or she knows is against the law. The government is not required to prove that the defendant knew that his or her actions violated any particular law.”
