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Has More FCPA Enforcement Brought Less Deterrence?

The DOJ ramped up FCPA enforcement over the past five years. But could its aggressive pursuit of prosecutions be hurting attempts to deter corruption? It’s possible.

One criminology theory particularly applicable to white collar crime is neutralization. It postulates that people invoke learned excuses to justify violating legal norms they generally subscribe to. “Condemnation of the Condemners” is one such neutralization. It attempts to shift the focus from the offender’s actions to the actions of the legal authorities –- most commonly achieved by accusing the authorities of corrupt or oppressive behavior. By successfully focusing on the authorities’ actions, a person is able to neutralize the standards that would normally control his or her behavior.

Several high-profile FCPA prosecutions recently ended badly for the DOJ. In two separate Africa sting trials, there were three acquittals and juries deadlocked on all counts as to seven other defendants. The 0-10 result for the DOJ led one defense lawyer in the case to refer to the entire Africa sting prosecution as a “made-up fantasy.”

Last December, a federal judge in California cited prosecutorial misconduct when he threw out the convictions of Keith Lindsey, Steven Lee, and Lindsey Manufacturing. Earlier this year, a judge in Houston acquitted John O’Shea of all substantive FCPA charges due to a lack of evidence. In delivering his ruling, the judge said: “The problem here is that the principal witness against Mr. O’Shea . . . knows almost nothing.”

Prior to 2011, the DOJ’s FCPA unit maintained a near spotless record, leaving little rational basis for any condemnation. But “fantasy” cases, unsubstantiated charges, and allegations of blatant prosecutorial misconduct have arguably cast reasonable doubt upon some of the DOJ’s tactics. This doubt may readily serve as a means for future FCPA violators to condemn the DOJ and thus neutralize FCPA deterrence.

Africa sting defense counsel Paul Calli reminded us that “the ends never justify the means.” If the DOJ is serious about deterring FCPA violations, it needs to recognize the ramifications of overzealously pursuing suspected violators. Otherwise, its means will not only be unjustified but could actually facilitate future FCPA violations.

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Joe Cassin is a law enforcement officer in Texas. He can be contacted via the FCPA Blog here.

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