Even for defendants who are ultimately acquitted, federal criminal prosecutions leave behind a scorched earth of ruined reputations, shattered health, broken families, and drained bank accounts.
With that in mind, Professor Mike Koehler, left, published a paper in this week’s Bloomberg Criminal Law Reporter that talks about the DOJ’s string of losses in recent FCPA trials. He asks, What level of losses is acceptable?
There’s no bright-line answer. But, Koehler said, we know it when we see it.
Here’s Koehler’s account of the Africa sting, Lindsey, and O’Shea trials, among others:
[The Justice Department’s] losses in these FCPA enforcement actions would have been troubling if, for instance, all of the losses were based on a single issue (such as perhaps an aggressive interpretation of the same FCPA substantive element). However, such a common thread was not present in the recent string of DOJ losses. Rather, and more problematic, DOJ’s losses were for a variety of reasons: apparent jury resentment of a bad-faith sting operation, aggressive legal theories, insufficient evidence, and numerous instances of prosecutorial misconduct. Moreover, the losses were not merely adverse jury verdicts but rather were instances in which judges took the unusual step of refusing to allow the trial or specific charges to proceed after DOJ’s case; a judge issuing a rare post-verdict dismissal of a case because of prosecutorial misconduct; DOJ dismissing a case after the defendant had pleaded guilty; and DOJ dismissing several cases before the trials even occurred.
In light of that record, Koehler said, this would be a good time for the DOJ to do some reflecting. To step back and ask where future FCPA enforcement should go. To take a breather before plunging another defendant into the nightmare of a federal criminal prosecution.
But apparently that’s not happening, he said, based on what leaders in the DOJ are saying publicly.
Professor Mike Koehler’s article, What Percentage of DOJ FCPA Losses is Acceptable?, is available from SSRN here.