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‘Foreign Offical’ Challenge On Appeal

Two Haiti Telco defendants convicted by a jury last year of FCPA, wire fraud, and money-laundering offenses have asked a federal appeals court to review the meaning of ‘foreign official.’

Joel Esquenazi and Carlos Rodriguez are arguing to the U.S. Court of Appeals for the 11th Circuit that state-owned Telecommunications D’Haiti S.A.M. is not an ‘instrumentality’ under the FCPA and that its directors, officers, and employees aren’t ‘foreign officials.’ If that’s true, bribes paid to them wouldn’t violate the FCPA.

In October, Esquenazi received the longest FCPA-related prison sentence ever — 15 years. Rodriguez was ordered to serve seven years in jail.

A ‘foreign official’ challenge during their trial in federal court in Miami was denied by the judge. This is the first time an appellate court has been asked to review the question.

Sam Rubenfeld at the Wall Street Journal noted that the appellate briefs cited ‘positions taken by Michael Koehler, an assistant professor of business law at Butler University who blogs under the name FCPAProfessor, . . .  Rodriguez’s lawyers argue that it is within the scope of the court to resolve the definitions of “foreign official” and “instrumentality” under the FCPA.’

Other trial courts have considered the question. They also sided with the DOJ’s so-called expansive interpretation that state-owned enterprises are ‘instrumentalities’ under the FCPA.

Next time, we’ll start looking at what federal trial judges have said about ‘foreign officials.’

Here’s a copy of Esquenazi’s appellate brief.

Esquenazi Appeal

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