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.”
As highlighted in this prior post, in connection with the Cognizant Technology Solutions enforcement action concerning obtaining various permits in India, in early 2019 the DOJ (and SEC) also charged Gordon Coburn (former President and CFO of the company) and Steven Schwartz (former Executive Vice President and Chief Legal and Corporate Affairs Officer) with various FCPA offenses.
Five years later, the case against the individuals remains active and the trial has been delayed several times for a variety of reasons.
Recently, U.S. District Court Judge Michael Farbiarz (D.N.J.) adjourned the trial once again – this time until March 2025.
Set forth below are excerpts from Judge Farbiarz’s order which touch upon foreign evidence issues.
“The theory of the prosecution here is that the Defendants authorized payment of a bribe to government officials in India, to be made through an Indian company.
Employees of the Indian company have been interviewed – some by the United States, some by investigators acting for one or both of the Defendants. The gist: the company officials say they did not know of any bribes, according to written reports of the interviews.
The reports are potentially helpful to the Defendants.
But that may not matter. The written reports are likely hearsay, and if so the jury may not be allowed to see them.
And per the Defendants, the reports may not matter enough. As the Defendants have repeatedly emphasized, ‘paper testimony’ is typically less vivid and less persuasive than traditional witness testimony. Even if the reports were admissible, the Defendants have argued, they would be second best.
None of this would present a problem if the Indian company officials were in the United States. The Defendants could seek a subpoena to require them to appear at trial.
But the Court’s subpoena power does not generally extend abroad.
To address this problem, the Defendants applied to the Court for assistance with ‘letters rogatory.’ These can facilitate the taking of depositions outside of the United States, and such deposition testimony can be admissible at trial under Federal Rule of Criminal Procedure 15. The application was granted at the end of 2022.
But it appears the letters rogatory did not bear fruit. No depositions have been taken.
There is potentially another way to obtain evidence abroad, via a request pressed by the United States under the United States/India Mutual Legal Assistance Treaty (MLAT).
There are suggestions in the record that the United States previously represented that MLAT requests cannot be made to assist a defendant with putting hands on foreign evidence.
But that is not the current position of the United States, at least as to the Defendants’ request here – and in early 2024 the United States made an MLAT request to India to secure the depositions the Defendants have sought.
[See here for a prior guest post on this issue]
The problem: The MLAT requests has not yet been acted on by Indian officials, and the United States recently indicated that the depositions will likely not be completed before the current trial date.
At first blush, this seems like a solid-enough reason to adjourn the trial, as the United States requests, so the Defendants can: (a) conduct the depositions that, for years, they have sought to take, and (b) try to get some of the depositions before the jury at trial.
But there is a wrinkle. Testimony from the Indian company officials may be a bit less important now than it was — and this may make an adjournment less appropriate.
Why would the Indian company officials’ testimony now be less important?
Because the Defendants now have two alternative ways to put before the jury evidence that supports their argument that a bribe payment was not made through the Indian company.
First, the Defendants recently applied for and received permission to subpoena a United States witness – a lawyer whose firm conducted an internal investigation. The lawyer’s anticipated testimony: his firm found no evidence that a bribe was paid through the Indian company to government officials in India.
And second, the United States has recently agreed that it will not object to the admission into evidence at a September trial of three written reports, that reflect interviews that were conducted of the Indian company officials by the FBI. These reports suggest, among other things, that company officials were unaware of a bribe payment.
Given all this, the question on the table boils down to this: adjourn the trial until early 2025, as the United States requests (on the expectation that depositions will much more likely have been taken by then); or go forward in September (without depositions, but with the lawyer’s testimony and with the three interview reports)?
The question is a close one.
[…]
On the merits, the adjournment question is a close one because a heavy weight sits on the scale against moving the trial date. This case, complex though it is, has been pending for a long time. The indictment here was returned in February of 2019. This case needs to be tried.
And there is another issue, too. There is no guarantee, the United States says, that depositions will be completed by any particular date.
In spite of all this, the Court concludes that an adjournment makes sense.
The fundamental reason why: to preserve the integrity of the truth-seeking process. That process can be long, as it has been here. But it assumes that at the end of the road the jury will be asked to make its bottom-line decision based on cross-examined witness testimony that gets to the heart of the matter. That is the touchstone of our criminal justice system, and that is the sort of evidence the jury here should be able to see. Without an adjournment, they would not be able to.
[…]
In short: the difference here between an adjournment and no adjournment is the difference between a trial that fully accords with the basic forms of our truth-seeking process, with cross-examined witnesses – and one that does so only to a lesser extent. Given that choice, an adjournment makes sense.”
[…]
The Court has little doubt that having sought (and now obtained) an adjournment – the United States will during the coming weeks act with added intensity, using all means reasonably available to it, to ensure that the MLAT is complied with and the relevant depositions are taken, in plenty of time before trial.
[…]
Jury selection will begin on March 3, 2025.”
