In Fall 2024, Glenn Oztemel (previously employed by Arcadia Fuels Ltd. and Freepoint Commodities LLC) was found guilty at trial of FCPA and related offenses in connection with a Brazil bribery scheme.
As stated in the DOJ release: “According to court documents and evidence presented at trial, Oztemel […] paid bribes to officials of Petróleo Brasileiro S.A. (Petrobras), the Brazilian state-owned oil and gas company, to obtain lucrative contracts for Arcadia Fuels Ltd. (Arcadia) and Freepoint Commodities LLC (Freepoint). […] With the assistance of others, Oztemel paid and caused the payment of bribes to Petrobras officials for their assistance in helping Arcadia and Freepoint to obtain and retain fuel oil contracts with Petrobras and by providing Oztemel and others with confidential information regarding Petrobras’ fuel oil business. Oztemel and his co-conspirators caused Arcadia and Freepoint to make corrupt payments — disguised as purported consulting fees and commissions — to a third party intermediary and agent, Eduardo Innecco, 74, knowing that Innecco would pay a portion of those funds to Brazilian officials, including to Houston-based Petrobras trader Rodrigo Berkowitz.”
In January, Oztemel filed a motion “for the entry of a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or, in the alternative, an order of a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure.” (See here for the prior post).
In summary fashion, the motion stated:
“A judgment of acquittal is warranted for a simple reason: the government failed to carry its burden to show that Defendant Glenn Oztemel committed any criminal offense within the statutory limitations period or was a knowing and willful participant in any conspiracy that existed within that period. To the contrary, the statute of limitations precludes liability for any conduct prior to August 2017, and the government’s efforts to establish Oztemel’s guilt based on transfers and emails in 2018 hit a wall at trial—where the record undercut any assertion that this charged conduct (which occurred years after the key events addressed in testimony) was unlawful. The government also failed to prove its more fundamental claim that Oztemel entered into an unlawful agreement in the first place. Based on the record at trial, no reasonable juror could have found beyond a reasonable doubt that the government carried its burden as to these crucial elements.
Alternatively, the Court should grant a new trial. First, there were three material errors in the jury instructions, each of which impermissibly allowed the jury to convict for conduct that is not unlawful and each of which implicated a core factual dispute: (1) errors in conflating the elements of distinct theories of substantive FCPA liability; (2) errors in the standard for joining a conspiracy; and (3) errors in the limitations period instructions. Second, the limits imposed on opening statements hamstrung the defense, favored the government, and caused substantial prejudice. Finally, the Giglio violation revealed mid-trial was not properly resolved and robbed the defense of its best chance to impeach the government’s main witness. Taken separately and together, each of these points warrants a new trial. Leaving the verdict in place in these circumstances would work the very injustice that Rule 33 is intended to remedy.”
Recently, Judge Kari Dooley (D. Conn.) denied the motion.
As to the motion for a judgment of acquittal, the order states:
“In seeking a judgment of acquittal, Defendant renews, principally, the claim he raised pretrial—that the prosecution is time-barred because the Government failed to prove that any illegal conduct occurred after August 14, 2017, the agreed upon cut-off date under the applicable statute of limitations. He also challenges the sufficiency of the evidence as to whether Defendant “entered into an unlawful agreement in the first place.” In response, the Government asserts that Defendant is simply arguing an alternative interpretation of the evidence at trial, which, when viewed under the deferential standard discussed above, supports the jury’s verdict. The Court agrees with the Government.
Stepping back, the Court reviews some of the procedural history in this matter. On October 16, 2023, Defendant filed a motion to dismiss arguing, inter alia, that the Superseding Indictment was, on its face, time barred. The main premise of the motion was the lack of connection between any of the events that occurred in 2018 (which fell within the statute) and the charged conspiracy which dated back to 2010. Defendant argued that the events that occurred in 2018 could not have been “in furtherance of” either the FCPA conspiracy or the “offer, payment, promise to pay, or authorization to pay” bribes as required under the FCPA. The argument was compelling, as all parties agreed that the last known bribery payment occurred in 2016. The Court agreed that the connection between the bribery scheme and the events in 2018 was “not obvious,” but ultimately concluded that these were questions for the jury and part of the Government’s burden of proof. The Superseding Indictment, which tracked the statutory language, was not time barred on its face. In the instant motion, Defendant argues that the Government did not meet its burden.
The Court disagrees. Rodrigo Berkowitz (“Berkowitz”) filled this evidentiary gap. He testified that his activities in exchange for bribes continued until December 5, 2018, the date the Brazilian investigation became public and the day on which the Federal Bureau of Investigation knocked on his door for the first time. He further testified that he was still owed bribe money under the scheme, and that, although he was promised bribes for which he did not actually receive the money, he still expected to be paid “because I had an agreement between Eduardo Innecco and Glenn to receive those bribes.” The jury also heard testimony about the sharing of confidential Petrobras information in connection with trading in July 2018, which was described as part and parcel of the bribery scheme. Berkowitz testified that he provided information on an oil trade deal … in August 2018 in exchange for bribes. By way of further example, Berkowitz testified about a “fake negotiation” in 2018 in which Freepoint won the trade for which he expected approximately $50,000.00 in bribe monies. These are merely examples of Berkowitz’s testimony implicating Defendant in the time period that followed August 14, 2017. In combination, the jury could have concluded, crediting Berkowitz’ testimony, that the events which undergird the substantive counts and the overt acts within the limitations period, were “in furtherance of” the FCPA and money laundering conspiracies as well as the unlawful “offer, payment, promise to pay or authorization to pay” bribes, even if the promised payment never materialized.”
Judge Dooley also denied the motion for a new trial based on deficient jury instructions. Among other things, the Judge stated:
“While the Court agrees that the case, the evidence, and the instructions were complex, and even complicated, the Court cannot conclude that the jury was unable to apply the various legal principles to the record evidence. […] The mere fact that a case offers complex legal theories or multiple alternative bases for finding liability is not a basis upon which to conclude the jury was unable to properly assess the evidence and render a verdict.”
