Checking in on an appeal, sentence reduced, and for the reading stack. It’s all here in the Friday roundup.
Checking In On An Appeal
This recent post highlighted the DOJ’s appeal in the Lawrence Hoskins matter.
Recently Hoskins filed a brief in response and is also cross-appealing certain issues.
As to the DOJ’s appeal challenging the trial court’s decision to acquit Hoskins of all FCPA charges on the grounds that the trial evidence utterly failed to prove he acted as an agent of a domestic concern, the brief states in summary fashion:
“A square peg in a round hole. That idiom has plagued the government’s FCPA theory from the outset. Despite heroic efforts to contort law, force facts and twist logic, Mr. Hoskins was not an agent of a domestic concern. Not unlike Cinderella’s wicked stepsisters, the government has tried desperately to find a fit.
The government first tried to proceed on a deficient theory by arguing that Mr. Hoskins could be liable under principles of conspiratorial and accessorial liability even if he was not within any category of individuals expressly covered by the FCPA. That effort was rebuffed, first by the district court and then by this Court. Undeterred, the government attempted to prove that Mr. Hoskins was an agent of API. But, in a thoughtful, well-reasoned Rule 29 decision, the district court properly found that the government failed to meet its burden. And so, for the second time in this misguided prosecution, the government appears before this Court as the appellant, simultaneously trying to shrink the facts to fit the law and expand the law to fit the facts. The hard reality for the government is simply this: The law and facts are clear, and when that law is applied to the facts, the shoe just does not fit.
The internal inconsistencies in the government’s allegations betray this mismatch. The operative Indictment describes Mr. Hoskins’s “responsibilities” as “approving the selection of, and authorizing payments to, consultants” and, further, as “includ[ing] oversight of the hiring of consultants in connection with Alstom’s and Alstom’s subsidiaries’ efforts to obtain contracts . . . including the Tarahan Project.” As if asserting that day equals night, the Indictment alleges that it is that conduct that renders Mr. Hoskins an agent of API. In pretrial litigation, the government described Mr. Hoskins as “a foreign national leader of a U.S.- based bribery scheme.” However, following its unsuccessful interlocutory appeal, the government shifted gears at trial, casting Mr. Hoskins as subservient to API and therefore its agent. Similarly, in opposing Mr. Hoskins’s post-trial Rule 29 motion, the government proclaimed that Mr. Hoskins served as a mere corporate rubber stamp whose “approval function was rote at best,” and that he “actually exercised no meaningful oversight.” At sentencing, the government redirected once again, recharacterizing Mr. Hoskins as part of Alstom’s “executive level leadership,” and highlighting his responsibility to “enforce Alstom corporate policies . . . .”
In this second appeal, day has again become night. The government asserts that “API . . . had ultimate decision-making authority over all aspects of the retention of consultants” and that Mr. Hoskins mainly “performed support functions and services for and on behalf of . . . API.”
Putting aside the government’s posturing, however, it is readily apparent that Mr. Hoskins was never API’s agent. Alstom’s corporate records and the uniform testimony of the government’s cooperating witnesses demonstrated that Mr. Hoskins worked for Alstom’s International Network (“IN”), a corporate division based in Alstom’s Paris headquarters, which was in no way subservient to API. Within IN, Mr. Hoskins was responsible for, inter alia, coordinating business-development efforts in his large region and implementing Alstom’s strategy. Most importantly, Mr. Hoskins also had to determine whether to approve requests by business units, like API, to hire external consultants like those at issue in this case. This authority derived from Mr. Hoskins’s duties and responsibilities as an IN executive, and API had no ability to override, revoke or terminate that authority. Thus, API had no right to control Mr. Hoskins’s actions in connection with the retention of consultants, and Mr. Hoskins did not agree to act—nor did he act—as API’s agent.
The long, tortured history of this case exposes the distorted prism through which the government seeks to present the evidence. When Mr. Hoskins was indicted, the government never expected to have to prove that he was an agent of API. After the government’s original defective charging theory was rejected, it tried to reverse course by turning Mr. Hoskins into someone else entirely, who bore little resemblance to the senior Alstom official described in its original allegations. At the same time, in an effort to blunt the impact of this Court’s prior ruling, the government has advanced an ever-expanding agency definition, one that would make “agent” a synonym for “conspirator,” thereby resuscitating the erroneous interpretation of the FCPA that this Court’s prior decision properly foreclosed.
The district court rightly concluded, consistent with the trial evidence and the well-settled law of agency, that Mr. Hoskins was not API’s agent. For the reasons that follow, the district court’s ruling should be affirmed.”
Regarding the cross-appeal, the brief frames the issues as follows:
“First, whether Mr. Hoskins’s Speedy Trial Act and Sixth Amendment rights were violated by the extraordinary delay between his indictment in July 2013 and eventual trial in October 2019, particularly in light of the fact that Mr. Hoskins’s alleged involvement in the charged offenses ceased in 2004.
Second, whether the district court gave an erroneous jury instruction with respect to Mr. Hoskins’s withdrawal defense by failing to instruct the jury that resignation from the business enterprise through which the charged crimes were committed could constitute withdrawal if, following that resignation, Mr. Hoskins severed all contact with his alleged co-conspirators, performed no further acts in furtherance of the offense and received no benefit from the offense.
Third, whether the government failed to establish venue in the District of Connecticut for Counts Nine, Ten and Twelve, the substantive money-laundering offenses, each of which involved discrete transfers of funds from Maryland to Indonesia in violation of 18 U.S.C. 1956(a)(2)(A).”
As highlighted in this article:
“A Florida federal judge signed off Tuesday on prosecutors’ request to reduce by nearly two years the sentences of two Venezuelan nationals who were convicted in a conspiracy to move about $60 million in bribes to officials at Venezuela’s national electricity company, acknowledging the pair’s cooperation in securing other convictions.
U.S. District Judge Cecilia Altonaga agreed to reduce the 51-month sentences for Luis Alberto Chacin Haddad and Jesus Ramon Veroes to 30 months because of their cooperation with the government, as they provided detailed information about how the bribes were facilitated and how the money was laundered that led to the indictment of two other individuals.”
For the Reading Stack
The most recent edition of the always informative FCPA Update from Debevoise & Plimpton has a nice summary of how the recent resolution document in the Herbalife FCPA enforcement action contains DOJ updates to “Attachment C” “to incorporate some of the new guidance from its June 2020 update to the Evaluation of Corporate Compliance Programs.”
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