Foreign Corrupt Practices Act enforcement has existed for approximately 50 years.
From time to time, criminal charges that are brought are dismissed.
In some instances, a judge dismisses the charges against the DOJ’s wishes. (See here, here, here, here, here, here, here, here, here, here, here, and here).
In other instances, criminal charges are dropped at some point during the litigation process (or even after) per the DOJ’s request.
For instance, in 2007 Si Chan Wooh, an employee of SSI International (a wholly owned subsidiary of Schnitzer Steel), was criminally charged with conspiring to violate the FCPA by making cash payments to officers and employees of foreign, government-owned steel production companies to induce employees of those companies to do business with, and provide preferential sales terms to, Schnitzer Steel. Wooh pleaded guilty.
However, in 2011 ‘‘the Justice Department informed Wooh’s counsel that a Federal Bureau of Investigation agent assigned to the investigation of Schnitzer and its employees had written a letter to a high-ranking prosecutor in Washington saying Wooh should not have been charged in connection with the case.’’
In October 2011, DOJ moved to dismiss the case ‘‘out of prosecutorial discretion in the interests of justice and the efficient use of government resources.’’
Judge Garr King (D. Ore.) granted the dismissal.
As described in this prior post, in 2017 (in connection with an undercover sting) the DOJ unsealed criminal charges against Joseph Baptiste (a retired U.S. Army Colonel, practicing dentist, and founder / president of a Maryland-based Haitian focused non-profit) for alleged Haitian bribery. In 2018 the DOJ added criminal charges against Roger Boncy in connection with the same core conduct.
Baptiste and Boncy put the DOJ to its burden of proof and in June 2019, after a two-week trial, a federal jury in Boston found Baptiste guilty of one count of violating the Travel Act and one count of conspiracy to commit money laundering and Boncy guilty of one count of conspiracy to violate the FCPA and the Travel Act.
Thereafter, in post-trial motions the defendants sought an acquittal or a new trial based on ineffective assistance of counsel. In March 2020, U.S. District Court Judge Allison Burroughs (D. Mass.) granted Baptiste and Boncy a new trial based on ineffective assistance of counsel. In August 2021, the First Circuit affirmed a new trial for the defendants.
A new trial was set to begin in July 2022 and, similar to pre-trial briefing in the first trial, the defendants filed a pre-trial motion requesting an order compelling the government to turn over evidence in its possession. In effect, the DOJ said that it did not have any additional evidence to turn over. The defendants also filed a motion to dismiss based on various evidentiary issues to which the DOJ initially objected.
Thereafter, the DOJ stated in a supplementary filing: “on June 23, 2022, the Federal Bureau of Investigation (“FBI”) provided to the prosecution team text messages from an FBI computer server, some of which relate to the December 19, 2015 calls between defendant Richard Boncy and an undercover agent that are the subject of the pending defense motion. On June 24, 2022, the prosecution team discovered a text message that describes the content of one of the December 19, 2015 recordings, including describing a statement by defendant Boncy that certain money would not be used to pay bribes. The government has now produced that and other text messages relating to the December 19, 2015 calls between defendant Boncy and the undercover agent.”
Shortly thereafter, the DOJ moved to dismiss the enforcement action against Baptiste and Boncy. The DOJ’s filing stated in full:
“The United States of America, by and through its attorneys, Rachael S. Rollins, United States Attorney for the District of Massachusetts, and Lorinda I. Laryea, Acting Chief of the Fraud Section of the Criminal Division of the United States Department of Justice, respectfully move for an order dismissing, with prejudice, the Superseding Indictment as to defendants Joseph Baptiste and Roger Richard Boncy, under Rule 48(a) of the Federal Rules of Criminal Procedure.
As grounds for this request, the government notes that, as it previously notified the Court and the parties, on the evening of June 23, 2022, the Federal Bureau of Investigation (“FBI”) provided to the prosecution team contemporaneous writings about the content of December 19, 2015 calls between defendant Boncy and an undercover agent that had not been previously disclosed to the prosecution team. The government provided this information to the defense on June 24, 2022. In light of the Court’s Rule 33 decision vacating the prior convictions, which was affirmed on appeal, the loss of the December 19 recordings, and the belated disclosure of communications concerning the content of the December 19 recordings, the government seeks to exercise its discretion and dismiss the Superseding Indictment. As a result, the government is not seeking a retrial. Finally, the government submits that dismissal with prejudice serves the interest of justice.
The government has conferred with the defendants, both of whom consent to dismissal of this case with prejudice.”
A day later, Judge Judge Burroughs granted the DOJ’s motion to dismiss.
In 2019, the DOJ criminal charged former Cognizant Technology Solutions executives Gordon Coburn and Steven Schwartz in connection with an alleged bribery scheme in India.
The case was actively litigated for approximately six years and trial was scheduled to begin on April 7, 2025. On April 1, 2025, the DOJ filed a letter motion seeking to dismiss the action. On April 3, 2025, Judge Michael Farbiarz (D. N.J.) granted the dismissal.
Another genre of criminal FCPA charges being dropped at some point during the litigation process per the DOJ’s request occurs every time the DOJ uses a deferred prosecution agreement (DPA) to resolve an FCPA enforcement action. Since 2005, the DOJ has used DPAs approximately 90 times to resolve FCPA enforcement actions.
When the DOJ uses a DPA, the process is generally as follows: a charging document (often a criminal information) along with the DPA is placed on the court docket and assigned to a judge. Pursuant to the terms of the DPA, after a certain time period (or perhaps before that time period if the DOJ in its sole discretion determines) and assuming certain specified conditions in the DPA have been met, the DOJ moves to dismiss the criminal action.
When the DOJ has moved to dismiss the action, to my knowledge a judge has never refused the DOJ’s request to dismiss.
As demonstrated above, dismissal of criminal FCPA charges is not uncommon.
Which makes the current tussle between the DOJ and Judge Nicholas Garaufis (E.D.N.Y.) in connection with an alleged Indian bribery scheme unusual.
In fact, in nearly 50 years of FCPA enforcement it appears to be a unicorn.
