Joseph Sigelman, a former co-CEO of PetroTiger Ltd., is demanding a criminal trial for charges against him in a federal indictment that include four FCPA-related offenses, as well as conspiracy to commit wire fraud and money laundering.
By exercising his right to trial, Sigelman, like many FCPA defendants before him, is forcing the Justice Department to prove the charges.
What’s that mean?
Here’s how the DOJ itself explained in a court filing what it has to prove beyond a reasonable doubt at Sigelman’s trial for the offense of violating the FCPA antibribery provisions:
First: Defendant was a domestic concern, or an officer, director, employee, or agent of a domestic concern;
Second: Defendant acted corruptly and willfully;
Third: Defendant made use of the mails or any means or instrumentality of interstate commerce in furtherance of an unlawful act under the FCPA, or aided and abetted another to do the same;
Fourth: Defendant offered, paid, promised to pay, or authorized the payment of money or of anything of value, or aided and abetted another to do the same;
Fifth: That the payment or gift was to a foreign official or to any person, while knowing that all or a portion of the payment or gift would be offered, given, or promised, directly or indirectly, to a foreign official;
Sixth: That the payment was for one of four purposes:
— to influence any act or decision of the foreign official in his official capacity;
— to induce the foreign official to do or omit to do any act in violation of that official’s lawful duty;
— to induce that foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality; or
— to secure any improper advantage; and
Seventh: That the payment was made to assist Defendant, or another whom he aided and abetted, in obtaining or retaining business for or with, or directing business to, any person.
An indictment, according to Federal Rule of Criminal Procedure 7(c)(1), is only “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” It’s a map of where the DOJ plans to go during the trial.
The trial, on the other hand, is the terrain itself. That’s where the DOJ’s real work happens in an FCPA case.
Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.