In early December, when Assistant AG Brian Benczkowski summarized the year’s FCPA enforcement scoreboard against individuals, he surprised just about everyone.
“So far in 2019,” he said, “the Criminal Division’s FCPA Unit has publicly announced more charges against individuals  than in any other year in history. It has also publicly announced more guilty pleas by individuals  than ever before.”
I was among those surprised. The DOJ’s numbers are about twice the size of the FCPA Blog’s tally. According to our count, 14 individuals were newly indicted for FCPA offenses last year, not 34 as Assistant AG Benkowski apparently said. And eleven FCPA defendants pleaded guilty in 2019 to FCPA or related charges, not 30 as he said.
What accounts for the difference between Assistant AG Benkowski’s count and ours? Several things.
The DOJ includes in its FCPA numbers defendants who are indicted in cases where there are FCPA charges against some defendants but not against all of them.
For example, Jean Boustani, the Lebanese national who worked for the Privinvest Group, was charged with money laundering and fraud offenses connected with alleged bribes in Mozambique. He’s included in the DOJ’s 2019 FCPA count although he wasn’t charged with FCPA offenses. (He was later acquitted of all charges.) Three other defendants indicted in the case were charged with FCPA offenses. They later pleaded guilty to non-FCPA offenses.
Manuel Chang, the former Mozambican minister of finance, was charged with the same money laundering and fraud offenses as Boustani, but not with FCPA offenses. He was also included in the DOJ’s 2019 count.
In the sprawling corruption prosecution involving Venezuela’s state energy company PDVSA, the DOJ charged some defendants with FCPA offenses. At least four other defendants were charged with money laundering but not with FCPA offenses, but were included in the DOJ’s 2019 FCPA count.
Similarly, the DOJ included in its 2019 FCPA count two Colombians involved with alleged bribes to officials in Colombia. They’ve been charge with money laundering but not with FCPA violations.
Going back to the long-running Venezuela-PDVSA prosecution, the DOJ included in 2019’s FCPA count defendants who were first indicted for FCPA offenses in 2018 or earlier and “re-indicted” in 2019 through a superseding indictment. The FCPA Blog included those defendants in our count in prior years but not again when they were “re-indicted” in 2019.
But the point here is not to quibble. There are all sorts of reasonable ways to count FCPA defendants. The DOJ has chosen one way, and the FCPA Blog another. The main concern is to be internally consistent year-on-year, and I think both the DOJ and the FCPA Blog have done that in their own ways.
The real lesson from the DOJ’s count is that FCPA prosecutions can be a lot bigger than they first appear. There may be more individual defendants indicted in an anti-bribery prosecution than just those charged with FCPA offenses (remember, the FCPA doesn’t reach foreign officials, who may be charged instead with money laundering or fraud).
It makes sense for the DOJ’s FCPA Unit to lump together defendants who share common facts and allegations about overseas bribery. Those defendants, however, may have played different alleged roles — some as bribe payers, some as bribe takers, some as mules to carry cash or jewelry, some using tainted money to buy real estate in Miami or NYC, and so on.
Because of their various roles, some defendants might not be chargeable under the FCPA. But they’re still part of a bigger case that revolves around FCPA allegations.