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The FCPA’s “Flynn” Parallel


As has been widely reported, recently the Department of Justice moved, pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, to dismiss its case against Michael Flynn (President Trump former National Security Advisor) even though Flynn previously pleaded guilty to a single count of making false statements to FBI investigators. As stated in this filing, “the Government has determined, pursuant to the Principles of Federal Prosecution and based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”

While lacking the national media coverage of the Flynn matter, this post highlights how the DOJ dropped certain FCPA enforcement actions against defendants after they pleaded guilty.

In 2007, Si Chan Wooh, an employee of SSI International (a wholly owned subsidiary of Schnitzer Steel), was criminally charged with conspiring to violate the FCPA by making cash payments to officers and employees of foreign, government-owned steel production companies to induce employees of those companies to do business with, and provide preferential sales terms to, Schnitzer Steel. (In 2006, Schnitzer and SSI International resolved DOJ and SEC FCPA enforcement actions by agreeing to pay approximately $15 million).

Wooh pleaded guilty. (See here for the plea agreement and here for the DOJ release).

However, in 2011 ‘‘the Justice Department informed Wooh’s counsel that a Federal Bureau of Investigation agent assigned to the investigation of Schnitzer and its employees had written a letter to a high-ranking prosecutor in Washington saying Wooh should not have been charged in connection with the case.’’ (See here).

Thereafter, the DOJ moved to dismiss the case pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure. As stated in the this filing. “The United States makes this motion out of prosecutorial discretion in the interests of justice and the efficient use of government resources.” Judge Garr King (D. Ore.) then granted the dismissal.

In 2010, among the defendants charged in the DOJ manufactured “Africa Sting” operation were Jonathan Spiller, Haim Geri and Daniel Alvirez. Unlike certain other defendants who put the DOJ to its burden of proof and ultimately prevailed at trial, Spiller, Geri and Alvirez pled guilty to a charge of conspiracy to violate the FCPA. In addition Alvirez also pled guilty to “non-Sting,” real-world conduct related to the Republic of Georgia.

After the trial court debacles in the first two Africa Sting trials, the DOJ moved to dismiss, with prejudice, the Africa Sting charges against Spiller, Geri, and Alvirez.  Moreover, the DOJ moved to dismiss, without prejudice, the Republic of Georgia charges against Alvirez. (See here for the prior post).

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