Previous posts here and here highlighted a motion to dismiss in an FCPA (and related) enforcement action involving Smartmatic executives including Roger Alejandro Pinate Martinez.
Part of the motion argues that the Supreme Court’s recent decision in Snyder (in which the court concluded that a statute (not the FCPA) only captures bribes not gratuities) should also apply to the FCPA.
The same argument is being made in another pending FCPA (and related) enforcement action involving Carl Zaglin. (See here for the prior post).
Recently, Pinate filed a reply brief which states in pertinent part:
“The government’s opposition to Mr. Piñate’s Motion is notable for what it does not do. The government does not meaningfully engage with Snyder v. United States, 603 U.S. 1 (2024), instead dismissing Snyder as “not an FCPA case.” The government does not address Mr. Piñate’s alternative request for a jury instruction that the FCPA does not prohibit gratuities. And the government, in arguing that Article 210 of the Philippine penal code satisfies the requirements of 18 U.S.C. § 1956(c)(7)(B)(iv), ignores Mr. Piñate’s argument that this Court should not permit the government to proceed under two other Philippine statutes.
The government’s unwillingness to engage with Mr. Piñate’s arguments is revealing. The government, weeks after the Snyder decision was issued but at the very end of a limitations period that it had maxed out using MLATs, brought an aggressive gratuities indictment without considering Snyder’s clear implications. It now realizes it cannot defend this use of the FCPA, given Snyder’s clear directives. Its concession invites one remedy: dismissal of the indictment.”
Under the heading “Snyder Provides an Interpretive Framework for Interpreting the FCPA,” the motion argues:
“The government claims that Mr. Piñate “seek[s] to stretch the holding of Snyder to encompass a statute not before the Snyder court,” and notes that Mr. Piñate “spend[s] nearly seven pages arguing that the FCPA does not criminalize gratuities.” It is undisputed that the Supreme Court did not interpret the FCPA in Snyder, and Mr. Piñate never suggested that it did. What Snyder does offer, however, is a framework for lower courts to use in interpreting similar criminal statutes.
Rather than engage with this framework and explain why it views the Supreme Court’s ruling in Snyder as inapposite, the government simply dismisses Snyder as “not an FCPA case.” This is the government’s choice, but it is a befuddling one. Every day, attorneys make arguments about what the law means to judges in courtrooms around the country. They often do so without the benefit of clear, controlling precedent; indeed, where such on-point precedential authority exists, it often means there is nothing to argue about. Attorneys and judges use other cases, analogizing and distinguishing them appropriately, to determine how those cases’ holdings, interpretive approaches, and even dicta might offer guidance for the case or controversy at hand.
Indeed, the government’s response is inconsistent with the basic premise of the common law system. The government suggests that because Snyder relates to a different bribery statute, it is useless to this Court in interpreting a similar question. But the government does not offer an alternative framework for how this Court should interpret the FCPA to determine whether it extends to gratuities. [A footnote states: As far as undersigned counsel is aware, the Supreme Court has never interpreted the FCPA. If courts cannot use other Supreme Court opinions, subject to the usual processes of interpretation, to understand the FCPA, it is unclear what basis the government proposes this Court use to understand the statute.] Should the Court interpret the FCPA’s text? The statutory structure? The legislative history? If so, the Court would merely be applying the Snyder framework anyway.
In his original motion, Mr. Piñate explored the Supreme Court’s step-by-step approach to determining whether a criminal bribery statute that applies to state and local officials, and explained how that approach informs this Court’s interpretation of a similar statute. Mr. Piñate need not rehash that here, because the government does not engage with it. The similarities between the FCPA and Section 666 are striking, and any reader of Snyder should have no doubt that, if asked, the Eleventh Circuit and Supreme Court would rule the same way regarding the FCPA.
No wonder the government would rather not address Snyder. Instead, it discusses United States v. Wakil, No. 21-cr-20406, 2023 WL 2898510, at *5 (S.D. Fla. 2023). In Wakil, an FCPA case which the government eventually dismissed voluntarily, the defendant argued prior to trial that the indictment failed to comport with the FCPA’s requirement that a bribe be paid to “obtain or retain business.” The government’s long quote from Magistrate Judge Reid’s report and recommendation in Wakil addresses a different issue – not the issue before the Court.
That’s not a surprise, because Wakil predated Snyder. Magistrate Judge Reid and this Court did not consider gratuities issues in Wakil, because they were not presented to the Court, and because the Supreme Court had not yet set forth, in scrupulous detail, why statutes that do not explicitly criminalize gratuities should not be read to criminalize gratuities. The dicta offered from Wakil offers little in persuasive value because, since Wakil, the Supreme Court has explained what differentiates bribes from gratuities: timing.
This Court should ask why the government does not want to touch Snyder. No doubt it knows that the Supreme Court would never bless its aggressive approach to the FCPA. But this Court need not punt on this question simply because the government would rather ignore it.”
