A former foreign program director of International Adoption Guides Inc. (IAG) pleaded guilty Wednesday to conspiring to defraud the United States by paying bribes to foreign officials and submitting fraudulent documents to the State Department concerning adoptions from Ethiopia.
Alisa Bivens pleaded guilty to submitting fraudulent documents to the State Department to facilitate adoptions of Ethiopian children by U.S. parents from 2006 until 2009, the Justice Department said.
In support of U.S. visa applications for the Ethiopian children, Bivens and her co-conspirators submitted false documentation, including contracts of adoption signed by orphanages that could not properly give the children up for adoption because, for example, the child in question was never cared for or never resided at that orphanage.
Bivens also admitted that she and others paid bribes to two Ethiopian officials so those officials would help with the fraudulent adoptions.
The first of these two foreign officials, an audiologist and teacher at a government school, accepted money and other valuables in exchange for providing medical information and social history information for potential adoptees to the conspirators.
The second foreign official, the head of a regional ministry for women’s and children’s affairs, received money and all-expenses-paid travel in exchange for approving IAG’s applications for intercountry adoptions and ignoring IAG’s failure to maintain a properly licensed adoption facility.
The DOJ didn’t include FCPA charges against Bivens and didn’t say what was behind the decision.
A sentencing date hasn’t been set.
The State Department’s Bureau of Diplomatic Security is conducting the ongoing investigation.
Julie DiMauro is the executive editor of FCPA Blog and can be reached here.
Without knowing more about this particular case, it may be that the DOJ did not include FCPA charges against Ms. Bivens because of proof problems with the FCPA's "use. . . corruptly" requirement (Section 78dd-2(a); "corruptly do" (Section 78dd-2(i)(1) requirement, or possibly the Section 78dd-3(a)'s "corruptly make use of" requirement. In solely for-profit situations, bribe payments are assumed to be done "corruptly". In for-profit situations, where charitable donations are made to advance business goals, the DOJ has tended to look at relationships between charity officials and government functionaries, or to see if books and records were properly kept, and to conclude that false records or lack of records of the donation implied "corrupt" intent.
In the present case, there is a business purpose to making the bribe, but the direct purpose of the business, itself, is the charitable purpose of helping orphans. When charitable workers pay bribes at road blocks in order to get food to refugees, or bribe forestry officials to save old-growth forests and important habitats, or as in this case, bribe a teacher at a government school, and a ministerial official to provide documentation to allow an orphan to reach the adoptive home – then it is more likely that a judge will find that the prosecution failed to prove beyond a reasonable doubt that the defendant had "corruptly" used any process or media.
Because the defendant in this particular case used the falsified documents in a U.S. visa process, it is not necessary to prove "corrupt" intent, and the DOJ avoided the "corrupt" intent proof problem.
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