The U.S. Court of Appeals for the 11th Circuit will hear oral arguments Friday from two defendants convicted in the Haiti telco case. They’re challenging the DOJ’s interpretation of ‘foreign official’ under the Foreign Corrupt Practices Act.
Joel Esquenazi and Carlos Rodriguez are arguing 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. They were convicted by a federal jury on 20 conspiracy and substantive FCPA, money-laundering, and wire-fraud counts.
A ‘foreign official’ challenge during their trial was denied by the judge. This is the first time an appellate court has been asked to review the question.
Other trial courts have considered the issue. They sided with the DOJ’s so-called expansive interpretation that state-owned enterprises are ‘instrumentalities’ under the FCPA.
The arguments in United States v. Joel Esquenazi, et al., Appellants will be heard in Miami. The Eleventh Circuit usually grants parties just 15 minutes to make their arguments. The court has allotted each party 30 minutes in this appeal.
Richard L. Cassin is the Publisher and Editor of the FCPA Blog. He can be contacted here.