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Will we see coordinated enforcement of the FCPA and PATRIOT Act?

Since 9/11, a great deal of attention has been given to the ways in which anti-bribery laws can combat terrorist financing.

In the United States through measures such as Presidential Proclamation 7750 and abroad in countries such as the U.K. and Canada, using anti-corruption legislation in the war on terror has gained traction.

Despite the change in perception about graft since 9/11, the relationship between the FCPA and the PATRIOT Act remains relatively unexplored. But 18 USC § 2339B (“Providing material support or resources to designated foreign terrorist organizations”) could become increasingly relevant and useful in the pursuit of companies and people that pay bribes to state-sponsored terrorist organizations.

There’s no final consensus yet concerning the exact definition of a “state official” in that context. But the DOJ’s generally broad interpretation of the phrase and similar ones under the FCPA and other laws makes it only a small stretch to believe that this definition could stretch to terrorists that receive direct aid from legitimate governments.

While the potential financial penalties of violating 18 USC § 2339B are small compared to those paid out in many FCPA settlements, the potential prison terms for PATRIOT Act violations should strike fear into those who might pay bribes to designated terrorist organizations. The maximum prison term is now 15 years to life if commission of the crime resulted in death. (The maximum prison term for an FCPA antibribery violation is five years.)

There no real evidence yet that the U.S. government is planning a coordinated campaign of joint FCPA and PATRIOT Act enforcement actions. But the growing understanding of the ways in which corruption and terrorism share a symbiotic relationship could signal coming changes to enforcement practices.

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Andrew Reichardt is an editorial intern for the FCPA Blog.

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1 Comment

  1. While the potential combination is interesting, I'm not sure that I see the point. If the material elements of paying bribes to an organization satisfies the more severely punishing PATRIOT, then what is the point of indicting under the same facts under FCPA? Assuming conviction and non-concurrent sentencing, the penalties would change from 15-to-life to 20-to-life … not really enough to modify a potential criminal's behavior.
    Certainly in advising a client, it's probably valuable to mention that FCPA is not the worst that could happen. If PATRIOT frightens someone into not behaving badly, then mission accomplished; otherwise, what's the point? Is it easier to convict under FCPA, and if so how?


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