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From Siriwan To Gonzalez: Why The DOJ Altered The Way It Charges Alleged Corrupt Foreign Officials

Today’s post is from Mike Dearington, a 2013 Vanderbilt law grad who will soon start his practice career.  Dearington has previously authored several FCPA Professor guest posts on the Siriwan matter.


As the Wall Street Journal reported in March, the court in United States v. Siriwan has issued a stay of the case in order to await resolution of the Thai government’s prosecution of defendant Juthamas Siriwan. A recently released transcript of the March hearing, which details the court’s reasons for the stay, suggests a strategic shortcoming in the DOJ’s charging tactics in the case. The shortcoming may explain why the DOJ, after Siriwan, altered the way it charged an allegedly corrupt foreign official in a similar case, Gonzalez.

Siriwan Background

In 2009, prosecutors charged Juthamas Siriwan, former governor of Tourism Authority of Thailand, as well as her daughter Jittisopa, with awarding lucrative contracts to two Hollywood movie executives in exchange for kickbacks.  (See here for the prior post). Because foreign officials are outside the scope of the FCPA, prosecutors charged Juthamas Siriwan under the MLCA (Money Laundering Control Act). The indictment cited two theories of specified unlawful activity: promotion of (i) violations of the US Foreign Corrupt Practices Act and (ii) violations of Thai law. Under the MLCA, FCPA violations expressly constitute specified unlawful activity, 18 U.S.C. § 1956(c)(7)(D), and violations of Thai law may constitute specified unlawful activity by virtue of being an “offense against a foreign nation involving . . . bribery of a public official, or the misappropriation, theft, or embezzlement of public funds by or for the benefit of a public official,” 18 U.S.C. § 1956(c)(7)(B)(iv). But when the defendant is the foreign official, as in Siriwan, neither theory is well settled under federal law.

Questions about the FCPA theory of money laundering predominated a January 2012 hearing in Siriwan. At that hearing, the court suggested preliminary disapproval of the theory, noting the FCPA’s affirmative legislative policy of exempting foreign officials from its reach. See, e.g., Castle; Gebardi. The government countered that it had not charged the defendant under the FCPA statute and instead was charging money laundering in promotion of FCPA violations, a distinct crime (citing Bodmer).

During the March 2013 hearing, however, discussion shifted to the prosecution’s second theory of money laundering, where an “offense against a foreign nation” is the purported specified unlawful activity.

March 2013 Siriwan Hearing: Court Continues Stay Until Resolution of Thai Prosecution

During the March 2013 hearing on defendants’ motion to dismiss, the court was conspicuously reluctant to decide questions of Thai law, when it could instead wait until Thailand decides those questions itself: “I don’t understand how I could attempt to discover what Thai law is, the ins and outs of Thai law to make that type of determination.” The court opined:

“[E]specially when there are very serious issues, it behooves the court to be somewhat cautious in this regard. And, again, it seems to me that what will happen in Thailand will inform this court as to what this court’s proper response should be to the motion to dismiss. And I do not feel that it is my obligation to do that which can be done through a prosecution in Thailand as to Thai law. [I]t behooves me to wait and see even for no other reason that I can say, at least, they are experts in Thailand as to what Thai law is.”

Additionally, the court averred that an acquittal in Thailand would weaken the government’s money-laundering charge based on promotion of crimes against Thailand. The court speculated that, in the event Thailand acquits the defendant of the very conduct that constitutes specified unlawful activity under the MLCA charge, the government is “going to be precluded from making that argument because the Thai government will have said they haven’t violated Thai law . . . .”

The government did not concede this point, instead cautioning that, in the event of an acquittal in Thailand, the government “would want to reevaluate” its position. The government added that the MLCA charges would still stand under the FCPA theory of money laundering.

Gonzalez: The DOJ Alters Its Charging Tactics After Siriwan

The Siriwan court’s reluctance to decide questions of Thai law before resolution of Thailand’s domestic enforcement means a concomitant delay of the government’s case in the United States. And if prosecutors continue to charge money laundering in promotion of an offense against a foreign nation, thereby implicating foreign law, district courts may repeatedly decide to stay the cases until the foreign nation has resolved its charges against the official. In practice, charging a foreign official with money laundering where the specified unlawful activity is a violation of another country’s law can pose a “trial within a trial” problem; that is, the district court may decide to cautiously await that country’s direct prosecution of the offense before adjudicating a money-laundering charge in the United States predicated on that offense. The latter complication seems to have occurred in Siriwan.

In addition to the delay, when a court awaits the foreign nation’s prosecution, it renders ineffective the government’s prosecution for money laundering predicated on the foreign offense. For instance, if Thailand acquits Siriwan, it will be difficult for prosecutors in the United States to then prove that Siriwan intended to promote an offense against Thailand. On the other hand, if Thailand convicts Siriwan, imprisonment in Thailand may further delay extradition to the United States.

But the government seems to have learned all this from Siriwan. In March 2013, prosecutors in United States v. Gonzalez charged Venezuelan “foreign official” Maria Gonzalez with money laundering in a kickback scheme similar to the one in Siriwan. Specified unlawful activity charged in the criminal complaint consisted of violations of the FCPA, like in Siriwan, but did not include an offense against Venezuela. Thus, the court will not need to defer to resolution of a foreign prosecution of Gonzalez to decide the merits of the government’s case on a motion to dismiss.

Furthermore, prosecutors departed from Siriwan by adding a new charge: violations of the Travel Act. The Travel Act prohibits travelling or using the mail in interstate or foreign commerce with intent to promote unlawful activity. See 18 U.S.C. § 1952(a)(3)(A). Such unlawful activity, defined in § 1952(b), includes bribery under the laws of the United States or any state thereof in which it is committed. The Gonzalez criminal complaint cites New York State Penal Law sections 180.00 and 180.05, which criminalize commercial bribery. Based on the facts alleged in Siriwan, prosecutors could probably have charged Juthamas Siriwan with violating the Travel Act, based on California Penal Code section 641.3, which criminalizes commercial bribery. Naturally, these predicate unlawful activities raise no difficulties of interpreting foreign law, and federal courts are competent at deciding questions of state law.

Attorney General Holder’s Personal Stake in Siriwan and Gonzalez

Attorney General Holder has a personal stake in seeing money-laundering cases predicated on “an offense against a foreign nation involving . . . bribery of a public official” succeed. This is because Holder, as Deputy Attorney General in the Clinton administration, was instrumental in amending the MLCA so that it included this provision in its list of specified unlawful activity.

During the Clinton administration, Holder co-chaired the Money Laundering Steering Committee. As co-chair, Holder oversaw implementation of the National Money Laundering Strategy of 2000, one of five annual strategies mandated by the “Money Laundering and Financial Crimes Strategy Act of 1998.” The 2000 Strategy Report urged passage of the Money Laundering Act of 2000, a bill that would have added bribery of a public official to the MLCA’s list of specified unlawful activity. (The addition would have satisfied Article 7 of the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions.) Although the bill failed to pass, Congress resurrected the provision in 2001 under section 315 of Title III of the USA PATRIOT Act (codified at 18 U.S.C. § 1956(c)(7)(B)(iv)).

Presciently, the provision was intended to fill the very “loophole” at issue in Siriwan and Gonzalez. The 2000 report observed that:

“At present, . . . a foreign public official who accepts bribes or embezzles money and then launders the proceeds through a U.S. bank is not subject to a U.S. money laundering prosecution. The new provision will close that loophole, which severely limits the ability of the United States to investigate and prosecute the laundering of foreign criminal proceeds through financial institutions in the United States.”

Fast forward to 2009, and it is unsurprising that the DOJ, under Holder’s leadership, pursued Siriwan under the “offense against a foreign nation involving . . . bribery of a public official” provision that he helped develop.

But after the provision has caused substantial delays in Siriwan, it is equally unsurprising that the DOJ sidelined the provision in Gonzalez. That decision underscores the inefficacy of charging a specified unlawful activity that turns on a foreign offense, which can be better analyzed in a foreign court. Moreover, Gonzalez undoubtedly put the DOJ in the uncomfortable position of abandoning a strategy Holder helped develop earlier in his career at the DOJ.

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