The FCPA Docket (March 2016)

• Uriel Sharef, Herbert Steffen, Andres Truppel, Ulrich Bock, Stephan Signer and Eberhard Reichert, Carlos Sergi and Miguel Czysch  (SDNY 11-1056): The DOJ charged the defendants, all former senior executives with or agents of Siemens AG or one of its subsidiaries, in December 13, 2011. Truppel pleaded guilty on September 30, 2015, but his sentencing date has not yet been set (see Pending Sentencing section below). No trial date has been scheduled for the other defendants, all of whom remain at large. As non-U.S. nationals currently living abroad, the other defendants will likely require extradition to be tried.

• Elek Straub, Andras Balogh, and Tamas Morvai  (SDNY 11-9645): The SEC charged Straub, the former Chairman and CEO of Magyar Telekom Plc, Balogh, the former Director Central Strategic Organization, and Morvai, the former Director of Business Development and Acquisitions, on December 29, 2011. The three executives lost an initial motion to dismiss the charges against them in February 2013.  Following discovery by the parties, the Court is now considering motions for summary judgment filed by the defendants on grounds relating to personal jurisdiction and the statute of limitations. No trial date is currently set for the defendants, all of whom are currently living abroad. 

• Tomas Alberto Clarke Bethancourt, Iuri Rodolfo Bethancourt, Jose Alejandro Hurtado,Haydee Leticia Pabon, Joseph DeMeneses and Benito Chinea (SDNY 13-3074): The SEC charged Clarke Bethancourt, a former Executive Vice-President for the now defunct broker-dealer Direct Access Partners (DAP), Hurtado, a “back office” employee with DAP, Rodolfo Bethancourt, President of ETC Investment SA, and Pabon, Director for International Sales for a distributor of Venezuelan cable programs, under seal on March 12, 2013.  The SEC then added DeMeneses, a Managing Partner with DAP, and Chinea, the firm’s CEO, to the civil complaint on April 14, 2014.  The civil case against these individuals was stayed until December 22, 2015, due to related criminal proceedings that concluded last year. (Note: In contrast to the DOJ, the SEC charged the DAP-related defendants with only non-FCPA counts). 

• Jald Jensen  (NDOK 12-06): The DOJ charged Jensen, a former Sales Manager for Bizjet International, along with Bernd Kowalewski, the former CEO of Bizjet, on April 5, 2013. Kowalewski, who pleaded guilty in July 2014, was sentenced to time served on November 18, 2014. No trial date is currently scheduled for Jensen, who appears to be living outside of the United States. 

• Dmitry Firtash, Andras Knopp, Suren Gevorgyan, Gajebdra Lal, Periyasamy Sunderalingam, and KVP Ramachandra Rao  (NDIL 13-515).  The DOJ charged the defendants, all non-U.S. nationals, under seal in June 20, 2013 (unsealing the charges on April 2, 2014). Firtash, a Ukrainian national was arrested in March 2014 and released after posting $174 million bail. According to the indictment, Firtash controls Group DF which was named, but not charged, along with other companies associated with Firtash. The United States sought to extradite Firtash, but had its request rejected by an Austrian court on April 30, 2015. The other five defendants are at large, and no trial dates are currently scheduled. As non-U.S. nationals currently living abroad, these defendants will likely require extradition to be tried. (Note: Rao, a Member of Parliament in India, was not charged with an FCPA offense). 

• Lawrence Hoskins (DCCN 12-238): The DOJ charged Hoskins, the former Senior Vice-President of Alstom Asia, in a superseding indictment against Pomponi, the former Vice-President of Regional Sales for Alstom SA’s U.S.-subsidiary, on July 30, 2013. While Pomponi pleaded guilty on July 17, 2014, Hoskins has sought to have the charges against him dismissed. Although on December 30, 2014, the Court denied Hoskin’s initial motion to dismiss, on August 14, 2015, the Court agreed to strike the conspiracy count against him on the grounds that Hoskins, a non-U.S. citizen/domestic concern, was not Alstom’s agent and so could not be prosecuted under the FCPA for conduct occurring outside the territory of the United States. A trial date is currently scheduled for April 18, 2016.  The sentencing for all other defendants convicted in connection with this matter is suspended until this case is concluded (see Pending Sentencing section). 

• Alain Riedo  (SDCA 13-3789): The DOJ charged Riedo, the former Vice-President and General Manager of Maxwell Technologies’ wholly owned Swiss subsidiary, on October 15, 2013, and an arrest warrant was issued the same day.  As a non-U.S. national living abroad, Riedo will likely require extradition to be tried. No trial date is currently scheduled.

• Dmitrij Harder  (EDPA 15-1): The DOJ charged Harder, the former owner and president of the Chestnut Group, on January 6, 2015. Harder is actively contesting the charges against him. Among other things, he has filed motions to dismiss the charges against him that attack the sufficiency of the allegations and the constitutionality of how “public international organizations” are designated for the purposes of the FCPA. In response, the DOJ secured a superseding indictment against Harder in mid-December containing more detailed allegations in an apparent attempt to nullify one of Harder’s arguments for dismissal. And on March 3, 2016, the court rejected Harder’s attack on the constitutionality of how “public international organizations” are designated under the FCPA. Originally scheduled for last summer, Harder’s trial date is currently set for May 3, 2016. 

• Roberto Rincon and Abraham Jose Shiera Bastidas (SDTX 15-654): The DOJ charged Rincon and Bastidas, each the owner (together with others) of several closely held oil-related companies, under seal on December 10, 2015, and secured their arrests. Rincon is a U.S. permanent resident living in Texas, while Bastidas is a Venezuelan national living in Florida.  A trial date for both men is scheduled for April 25, 2016.

• Han Yong Kim  (CDCA 09-77):  The DOJ charged Kim, the former president of CCI’s Korean office, on April 8, 2009.  Kim, a non-U.S. national, has been challenging his fugitive status in attempt to contest his indictment without surrendering to U.S. authorities.  The Ninth Circuit rejected his challenge in April 2014.  The South Korean government has reportedly refused requests to extradite Kim because it does not consider the individuals Kim is accused of bribing to be public officials.   

• Washington Vasconez Cruz, Cecilia Zurita, and Amadeus Richers (SDFL 09-21010):  The DOJ initially charged Cruz, Zurita, and Richers, all executives with the telecommunications companies Uniplex Telecom Technologies and Cinergy Telecommunications, in 2011, and issued a superseding indictment in 2012. Numerous other individuals have been convicted in connection with this matter, including former co-defendants Joel Esquenazi and Carlos Rodriguez, who unsuccessfully appealed their 2011 convictions to the U.S. Court of Appeals for the Eleventh Circuit (see Pending Prosecutions below). Cruz, Zurita, and Richers were declared fugitives on March 7, 2013.  

• Enrique Faustino Aguilar Noriega (CDCA 10-1031): Noriega was the Director of Grupo Internacional de Asesores SA, a sales agent hired by Lindsay Manufacturing. The DOJ charged Noriega in 2010, along with Linsday Manufacturing and several other defendants. While Linsday Manufacturing and all the other individuals charged in connection with this case have had the charges against them dropped, Noreiga’s case is still listed as open. While the United States has reportedly ended its efforts to extradite Noriega, he remains a fugitive. 

• James Tillery (SDTX 08-22): The DOJ charged Tillery, a tormer executive for Willbros International, in 2008. Tillery was reportedly arrested in Nigeria in 2010, but immigration officials prevented the FBI from extraditing him without proper documentation. A Nigerian court later found the initial arrest of Tillery to be illegal and ordered him released. Nigerian police, however, reportedly refused to comply with this request. The status of U.S. efforts to extradite Tillery is unclear. Tillery remains a fugitive.   

• Edgar Valverde Acosta (SDFL 06-20797): The DOJ charged Acosta, the President of Alcatel de Costa Rica and Senior Country Officer for Alcatel Lucent SA in Central America, in 2006. Acosta is considered a fugitive. 

• Victor Kozeny (SDNY 05-518): The DOJ charged Kozeny, a Czech-born investor, in 2005. The United States attempted to extradite Kozeny from the Bahamas for years; however, the Bahamas’ court of last resort, the U.K. Privy Council, rejected the extradition request on March 28, 2012. Kozeny remains a fugitive.  

• Pablo Barquero Hernandez (WDMO 01-190): The DOJ charged Hernandez, a former employee of Owl Securities and Investment, in 2001. Hernandez is considered a fugitive.   

• Rami Dotan and Harold Katz   (SDOH 194-29): The DOJ charged Dotan, an Israeli Air Force officer, and Katz, an Israeli lawyer, in 1994. Dotan and Katz are considered fugitives.  

• Joaquin Pou  (SDFL 89-802): The DOJ charged Pou, a former agent for AEA Aircraft Recovery, in 1989. Pou is considered a fugitive. 

• Frerik Pluimers (NJ 98-240): The DOJ charged Pluimers, the former President and CEO of Saybolt International, in 1988. Pluimers is considered a fugitive. 

• Ricardo Beltran and Mario Gonzalez  (SDTX 82-224): The DOJ charged Beltran and Gonzalez, both associated with Grupo Delta, in 1982. Beltran and Gonzalez are considered fugitives. 

• William Pomponi  (DCCN 12-238): The DOJ originally charged Pomponi, the former Vice President of Regional Sales for Alstom’s SA’s US subsidiary, on April 30, 2013 and then issued a superseding indictment adding Lawrence Hoskins, the former President of Alstom Asia, on July 30, 2013.  Pomponi initially pleaded not guilty on May 3, 2013, but then changed his plea to guilty on July 17, 2014.  His sentencing has not yet been scheduled, and all deadlines in this case have been terminated, presumably pending the outcome in the Hoskins’ prosecution (see Ongoing Prosecutions above). 

• Frederic Pierucci  (DCCN 12-238): The DOJ charged Pierucci, the former Vice-President of Global Sales for Alstom USA, on November 27, 2012.  Pierucci pleaded guilty on July 29, 2013.  His sentencing was originally scheduled for October 25, 2013, but on that date all deadlines and hearings on the docket were terminated, as with Pomponi, pending the outcome in the Hoskins’ prosecution (see Pomponi above). 

• David Rothschild (DCCN 12-223): The DOJ charged Rothschild, the former Vice President of Sales of Alstom USA, on November 2, 2012. Rothschild pleaded guilty to the FCPA-related charges on that same day, but his settlement was not unsealed until April 15, 2013.  His sentencing has not yet been scheduled, presumably pending the outcome in the Hoskins’ prosecution (see Pomponi above). 

• Daren Condrey (DCMD 15-336): The DOJ charged Condrey, the Principal of Transport Logistics International, on June 16, 2015.  Condrey pleaded guilty to the FCPA-related charges on June 17, 2015. Two of Condrey’s co-conspirators, Vadim Mikerin (the former director of Tenex, a subsidiary of Russia’s State Atomic Energy Corporations) and Boris Rubizhevsky (a consultant to Mikerin) also pleaded guilty to related money-laundering counts last year, though neither was charged under the FCPA.  Condrey’s sentencing, originally set for December 2015, was re-scheduled for January 19, 2016, but does not appear to have occurred. No further information is presently available on Condrey’s docket. 

• Richard Hirsch and James McClung (DCNJ 15-358 and DCNJ 15-357): The DOJ charged Hirsch and McClung, both former Senior Vice Presidents for Louis Berger International (with Hirsch responsible for Indonesia, Thailand, Philippines and Vietnam, and McClung responsible for India and later Vietnam), on July 17, 2015.  Each pleaded guilty to FCPA-related charges on July 20, 2015.  McClung is currently scheduled for sentencing on May 11, 2016, and Hirsch on May 12, 2016. 

• Joel Esquenazi and Carlos Rodriguez (SDFL 09-21010; 11th Cir. 11-15331): The DOJ charged Esquenazi and Rodriguez, the former President and Vice-President of Terra Telecommunications, in December 2009.  Esquenazi and Rodriguez were convicted at trial in August 2011. On October 25, 2011, the pair was sentenced to 15 years and 7 years, respectively. They appealed their convictions to the US Court of Appeals for the 11th Circuit, which upheld the jury verdicts on May 16, 2014.  Rodriguez has continued to contest his conviction, first filing a Rule 33 motion for a new trial, which the Court denied on September 2, 2015, and then filing a motion for reconsideration based on “actual innocence,” which the Court denied on December 4, 2015. Rodriguez has appealed these denials to the 11th Circuit, filing notices of appeal on December 15, 2015, and February 5, 2016.

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Marc Alain Bohn is a contributing editor of the FCPA Blog and an editor of Miller & Chevalier’s FCPA Winter Review 2016. Karen Polk is an Assistant Librarian at Miller & Chevalier.