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Guilty Verdict in Haiti Teleco Case

Much of the attention this spring and summer has been on the Africa Sting, Lindsey Manufacturing and Carson cases.  Yet an FCPA trial also took place in Miami – part of the massive Haiti Teleco cases (see here for the prior post).

Today, the DOJ announced (here) that a federal jury (after a two week trial) convicted defendants Joel Esquenazi and Carlos Rodriguez “on all counts for their roles in a scheme to pay bribes to Haitian government officials” at Haiti Telecom.

Assistant Attorney General Lanny Breuer stated as follows. “This verdict is another powerful example that bribery of government officials – whether at home or abroad – has serious consequences. In finding the defendants guilty on all charged counts, the jury sent an unmistakable message that paying off foreign officials does not, in fact, pay off.”

According to the DOJ release, Esquenazi and Rodriguez, were convicted of one count of conspiracy to violate the FCPA and wire fraud; seven counts of FCPA violations; one count of money laundering conspiracy; and 12 counts of money laundering.

Sentencing for both defendants currently is scheduled for Oct. 13, 2011.

Previously in the case, Esquenazi challenged the DOJ’s foreign official interpretation (see here for the prior posts) and the DOJ and the defendants also sparred over the “foreign official” jury instructions.

Judge Martinez instructed the jury as follows.

“An ‘instrumentality’ of a foreign government is a means or agency through which a function of the foreign government is accomplished. State-owned or state-controlled companies that provide services to the public may meet this definition. To decide whether [Haiti Telecom] is an instrumentality of the government of Haiti, you may consider factors including but not limited to: (1) whether it provides services to the citizens and inhabitants of Haiti; (2) whether its key officers and directors are government officials or are appointed by government officials; (3) the extent of Haiti’s ownership of Teleco, including whether the Haitian government owns a majority of Teleco’s shares or provides financial support such as subsidies, special tax treatment, loans or revenue from government-mandated fees; (4) Teleco’s obligations and privileges under Haitian law, including whether Teleco exercises exclusive or controlling power to administer its designated functions; and (5) whether Teleco is widely perceived and understood to be performing official or government functions. These factors are not exclusive, and no single factor will determine whether [Teleco] is an instrumentality of a foreign government. In addition, you do not need to find that all the factors listed above weigh in favor of Teleco being an instrumentality in order to find that Teleco is an instrumentality.”

Defendants have a good chance to challenge this instruction on appeal should they so choose.

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