Will Tesler Make A Deal?

We reported this week that Jeffrey Tesler, the British lawyer accused of helping KBR and its partners bribe Nigerian officials, has stopped fighting against extradition to the United States. His lawyers said he’ll be traveling to Houston within 28 days.

Two other individuals charged in the case — Albert “Jack” Stanley, KBR’s former CEO, and Wojciech Chodan, KBR’s former commercial vice president at a U.K. subsidiary — have already pleaded guilty.

Will Tesler do the same? Here are some reasons why he might:

• Stanley and Chodan would testify against Tesler. They’re big guns — both former executives who are likely be articulate, knowledgeable, and specific about the bribery Tesler is accused of participating in. And Stanley and Chodan stand to gain sentencing credit for doing a good job helping the DOJ convince a jury to convict Tesler.

• Stanley, Tesler will know, is already the most important cooperating witness in FCPA history. He’s helped the DOJ and SEC collect $1.28 billion from three of four TSKJ consortium partners so far, with another $220 million expected from JGC.

• Tesler is 62 and faces 55 years in prison if found guilty on all counts. Why risk spending the rest of his life in a U.S. federal pen when the DOJ might be satisfied in a plea with a lot less time behind bars?

• He’s facing a forfeiture count for $132 million. Even if he’s acquitted on all FCPA-related counts except one, he’d still lose the forfeiture action. The DOJ could then chase all property he may have acquired around the time of the crime alleged, which for Telser is a bribery conspiracy that started in 1994 and lasted at least a decade.

• Tesler’s technical arguments about jurisdiction probably won’t work in a U.S. court. Here are two reasons:

First, lawyers for the U.K. and U.S. governments argued at his extradition hearings that U.S.-based companies were involved and money had been channelled through U.S. bank accounts. (jurisdiction over Technip and Snamprogetti, which both pleaded guilty in related enforcement actions, appeared to be based almost entirely on U.S. dollar bank transfers from the Netherlands to Switzerland and Japan.)

Second, in his indictment, the U.S. said Tesler is subject to the FCPA as an “agent” of an “issuer,” of a “domestic concern,” and of a “person,” all within the meaning of the FCPA. That status as “agent” confers jurisdiction over Tesler under the FCPA. (Title 15, U.S.C. §§78dd- 1, 78dd-2, and 78dd-3).

As the DOJ says, an indictment is merely an accusation and defendants are presumed innocent until and unless proven guilty at trial beyond a reasonable doubt.

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Is your organization ready for what’s coming? We’ll be in Houston on March 10 to talk about FCPA enforcement, along with Michael Volkov, Ryan Morgan, and others. We look forward to seeing you there. The program is free; registration is required. More details here.