The appeal by Carlos Rodriguez and Joel Esquenazi of their FCPA convictions is now with the 11th Circuit Court of Appeals.
As Mike Koehler noted in his post today (and in prior coverage), ‘this is a historic appeal, the first time in the FCPA’s history that “foreign official” will be squarely before an appellate court.’
The main issue is whether the DOJ’s so-called expansive view of ‘foreign official’ under the FCPA is correct. Esquenazi is also arguing that new exculpatory evidence wasn’t considered, and that the calculation of his 15-year prison sentence was wrong. Rodriguez is serving a 7-year prison term.
In the DOJ’s brief filed this week, it summed up its ‘foreign official’ argument this way:
Teleco’s status as a government instrumentality is also reflected in Haitian law that subjected Teleco officials to its prohibitions against official corruption. Defendants’ narrow construction of the term ‘instrumentality’ is inconsistent with the terms of the FCPA and Congressional intent. The prohibitions in the FCPA are expressed broadly and reflect Congress’s purpose to combat the problem of pervasive foreign bribery. Defendants’ interpretation of the statute is also inconsistent with the provisions of an international treaty and with Congress’s explicitly-stated intent, when amending the FCPA, to conform the statute to the treaty. The term ‘instrumentality’ is also not unconstitutionally vague. It provided fair notice that defendants’ bribery scheme, which involved intentional conduct and had no innocent explanation, was illegal. Moreover, defendants cannot complain that they were left guessing about the legality of their actions when they could have requested an opinion on that question from the Attorney General but did not do so.”
As we’ve said, Esquenazi and Rodriguez face long odds. Few federal criminal defendants win on appeal — only about 5%.