The FCPA’s extensive legislative history contains concerns about the due process of individuals charged with violating the Foreign Corrupt Practices Act.
Representative Bob Eckhardt (D-TX) was particularly concerned about this issue and he stated that if an individual is “brought to court in the United States and the witnesses are halfway across the world, it seems to me that he is at a disadvantage …”. Eckhardt likewise expressed concern about imposing a burden on an individual defendant “far away from the point where the evidence can be obtained.”
The FCPA’s legislative history also contains a report by The Association of the Bar of the City of New York expressing concern for the due process rights of individual defendants charged with violating the FCPA.
The report states:
“The position of the defendant before a U.S. court indicted for the crime of making a foreign payment would indeed be difficult. The existence of a foreign recipient of a payment is an essential element of the crime and the operative acts would almost inevitable have occurred on foreign soil. Whether or not the prosecution could obtain necessary evidence, the defendant would in most case be without the benefit of compulsory process with respect to foreign witnesses.”
This prior post highlighted the due process issues currently at play in the DOJ’s prosecution of former Cognizant Technology Solutions executives Gordon Coburn and Steven Schwartz. The matter concerns various permits in India and recently the judge once again adjourned the trial “to preserve the integrity of the truth-seeking process” in connection with foreign evidence issues.
Foreign evidence and due process issues are also at play in the DOJ’s prosecution of Charles Hunter Hobson (a former executive of Corsa Coal). (See here and here for prior posts).
In the enforcement action which began in 2022, the DOJ alleges that Hobson and others conspired to make corrupt bribe payments to an individual associated with Al Nasr Company for Coke and Chemicals (an alleged Egyptian state-owned and state-controlled entity) to obtain and retain lucrative contracts, and other business advantages from Al Nasr.
Recently, Hobson’s counsel (Gaines, Moore & Bowling) filed a motion requesting that the court (E.D. Pa.) “enter an order pursuant to the United States Constitution, Fifth Amendment, his substantive due process rights, and the authorities cited herein, granting the Defendant’s request for targeted discovery.”
In pertinent part, the motion states:
Mr. Hobson was arraigned on April 19, 2022. Over the last two and a half years, the government and undersigned counsel have engaged in discovery production. Mr. Hobson is scheduled for trial in this matter on April 21, 2025 through May 16, 2025. While charged with a variety of white-collar offenses, the core of the Indictment in this case is premised on the Foreign Corrupt Practices Act (“FCPA”) and conduct that occurred in Egypt or with citizens and other entities of Egypt.
The discovery Mr. Hobson has currently created numerous questions that the government is perfectly situated to answer or aid in answering. Mr. Hobson seeks specifically, to the extent these requests have not already been provided through discovery:
• any communications, documents, or evidence of the circumstances that alleged foreign nationals made any of their statements;
• any communications, documents, or evidence of whether these witnesses were arrested and or prosecuted in Egypt for any related conduct to the allegations in the Indictment, information about these legal proceedings, including sentencings, hearings, plea bargains, and cooperation;
• any communications, documents, or evidence of coordinated efforts between the United States government and the Egyptian government to investigate or prosecute this case;
• any communications, documents, or evidence of interrogations of these witnesses and their circumstances;
• any communications, documents, or evidence of how the government has concluded that key witnesses, including Ahmed Al-Nassar, is a foreign official, and whether he will be available as a witness at trial.”
Regarding statements allegedly made by Egyptian witnesses, the motion states:
“[U]ndersigned counsel would assert that it is common knowledge Egyptian citizens are not subjected to the same due process and protections as Mr. Hobson here; thus, the circumstances in which these witnesses made their statements is critically important to preparing Mr. Hobson’s defense—whether these statements were made as a result of prosecution, interrogations, or other processes not aligned with the interests of justice to defendants in this country would implicate their reliability. Given the government has already provided the statements, it is implied the government has this requested information available to it now or could access it. In any event, Mr. Hobson certainly cannot access it without the assistance of the government.
Moreover, undersigned counsel has no subpoena power in Egypt and no meaningful way to independently investigate and obtain information he otherwise would if the allegations were limited to conduct in the United States. Indeed, when undersigned counsel has sought to even perform cursory internet research to determine where to start with this question, undersigned counsel is not even able to access most direct webpages because the country is blocked, and access is denied.
[…]
Undersigned counsel diligently endeavored to sort through this discovery and effectively build Mr. Hobson’s defense, but the amount of foreign-born, non-English discovery in this case has effectively halted any further defense preparations for undersigned counsel. In short, the fact that the most critical evidence in this case is located in Egypt or occurred in Egypt is affecting Mr. Hobson’s right to due process and a fair trial.
[…]
Undersigned counsel has exhausted all reasonable efforts to obtain this information without government assistance. The government is in a position to assist Mr. Hobson and constitutional protections demand its assistance. Requiring disclosure of the requested specific discovery items will further support the judicial efficiency of this case. This case has been pending for two and a half years. If the government’s position is that it does not have these specific items at this time, Mr. Hobson’s position is that he will be in a position to file a motion to dismiss. Mr. Hobson is aware of another case in the Third Circuit, United States District Court of New Jersey, United States v. Coburn, Schwartz, 2:19. The defendants in that case are likewise charged under the FCPA. In one of their filings, the government had to ask for a continuance of a “peremptory” trial date of October 23, 2023 because on September 26, 2023, the government informed the parties that its “essential witness” could not or would not be traveling to the United States. Requiring disclosure of this specific discovery will ensure a similar witness problem will not arise in Mr. Hobson’s trial.”
The motion concludes:
“Accordingly, for all the above reasons, Mr. Hobson seeks due process relief by requesting specific discovery from this Court. Mr. Hobson, even with unlimited finances, would not and could not have the same access as the government to this evidence and independently investigate these witnesses and allegations. For this reason, his constitutional rights require disclosure and assistance. Mr. Hobson is respectfully requesting that this Court issue an Order requiring the government to turn over the requested discovery materials, and any other requests Mr. Hobson would make for good cause as these needs arise through the disclosures ordered from this motion.”
