Does a defendant need to know a bribe taker is a ‘foreign official’ to be guilty of an FCPA offense?
According to the DOJ, the answer is ‘yes.’
The question came up this month in U.S. v. Carson et al.
Prosecutors and the defendants have been trying to work out jury instructions for the trial, set to start in June next year.
In May, the defendants lost a motion to dismiss the FCPA counts against them based on the definition of ‘foreign official.’ They claimed employees of state-owned enterprises aren’t covered by the FCPA. The court disagreed.
But this month the arguments about ‘foreign officials’ resurfaced. This time in the discussion about jury instructions. Judge James V. Selna asked both parties to consider whether an element of an FCPA offense is a defendant’s knowledge that the individual allegedly taking a bribe is a ‘foreign official.’
The DOJ and the Carson defendants have both answered ‘yes.’
They haven’t agreed yet on the final language for the jury instructions.
The trial is set to begin on June 5, 2012. The defendants — Stuart Carson, Hong Carson, Paul Cosgrove, David Edmonds, Flavio Ricotti, and Han Yong Kim — are facing FCPA and Travel Act-related charges.
They’re accused of bribing employees at state-owned companies in Korea, China, the UAE, and Malaysia.
The case is US v. Carson et al, U.S. District Court, Central District of California, Southern Division – Santa Ana, Case #: 8:09-cr-00077-JVS-1.
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Here’s part of the government’s latest brief, filed Monday:
At the hearing on September 6, 2011, the government requested an opportunity to submit further briefing on the following hypothetical question posed by the Court:
THE COURT: I want to get the business, and I’m going to pay you $50,000. I want you to misuse your position. I may or may not know that you’re a government official. But assume the record establishes that the person is a foreign official and that the conduct solicited, whether he knows it or not, is misuse of an official position. He intended to make the bribe, and his conduct brought about misuse of an official position. Must he know that? Must he know that the individual is in fact a government official?
The Court subsequently ordered the government to submit its brief no later than September 20, 2011, with any defense response to be filed no later than October 4, 2011. On September 21, 2011, the parties filed a stipulation stating, in part, as follows:
Since the hearing, counsel for the government and counsel for the Defendants have discussed the issue raised by the Court. Those discussions have yielded what appears to be at least some consensus that the answer to the questions posed by the Court is “yes.” Accordingly, the parties have exchanged proposed jury instructions to reflect the resolution of this issue. The parties expect that their discussions will result in a joint proposed jury instruction on the elements of a substantive offense under the FCPA. If those discussions do not result in a joint proposed jury instruction, the parties expect that additional submissions will be limited to their respective proposed instructions, and any legal argument explaining how their respective instructions in fact differ.
On September 22, 2011, the Court issued an Order resetting the briefing schedule, with the government’s brief due on September 26, 2011, and the defendants’ brief due on October 10, 2011. The parties have continued to exchange proposed instructions over the course of the past week but have been unable to reach agreement on certain language in elements 4 and 5 of the instruction.
Download the government’s September 26, 2011 supplemental brief regarding jury instructions; memorandum of points and authorities here.