Here’s my advice, from the heart, to any FCPA defendant

Not all FBI stings in FCPA cases are alike. That became clear in the prosecution of Roger Richard Boncy and Joseph Baptiste. They were found guilty of FCPA and related offenses last month after a two-week jury trial in which the DOJ said they solicited “bribes from undercover agents posing as potential investors in a proposed port development project in the Mȏle St. Nicolas area of Haiti.”

Their prosecution was the first use of an FBI sting operation in an FCPA case since the failed Africa Sting, and my own period of undercover cooperation (2007-2010).

The Boncy and Baptiste trial in federal court in Boston (as reported daily by Clara Hudson of the GIR) was jarringly familiar to me, even down to the skirmishes among defense counsel and FBI agents over two missing phone recordings during the undercover operation.

Over the course of my cooperation, and the thousands of recorded calls, yes, some were dropped and not retained due to an issue with the technology. I remember FBI agents calling me after lost calls. It meant I had to make statements to FBI agents about what was discussed during those calls, and a few times I was told to confirm in subsequent calls what had been discussed in the lost call.

(For the record, my phone calls were consensually monitored by the FBI, as opposed to the Boncy and Baptiste case where the FBI recorded calls without consent but through judicially sanctioned intercepts, pursuant to the procedures set out in the DOJ’s Criminal Resource Manual at Section 28, Electronic Surveillance—Title III Applications.)

In the Africa Sting case, as with Boncy and Baptiste, the lost calls became a big part of the excruciating and extended cross examination, as if the entire case was about the lost calls and not the numerous other calls that were recorded and preserved. As Elina Rubin-Smith, the DOJ trial attorney from FCPA unit, said in her opening statement in Boston, and as reported in the GIR, “The technology the FBI used is not perfect and not what you see on TV.”

She was correct. As we all know, no technology functions flawlessly, without glitches and gremlins. Still, as I read the testimony by the FBI agents, who were once again accused on cross examination of sloppy work, I could feel the tension. And predictably, some pundits were drawing comparisons between what was happening at the  Boncy and Baptiste trial with what had happened during the Africa Sting prosecution — at least until the jury in Boston came back with guilty verdicts.

Another similarity was the defense cross in Boston about why the word “bribe” was never used. As reported in the GIR, “The lawyers, at times throwing their hands in the air, emphasized that no one in the conversations ever used the word bribe.”

And yet in real life, people don’t say “bribe” when they talk about bribes. That was something I didn’t get a chance to testify to at the Africa Sting trial because of evidentiary motions. But I’ve talked about it many times since then. Pull up just about any charging document from the SEC, DOJ, or overseas agency, and you can see a robust list of bribe euphemisms from “cakes” to “chickens.”

I experienced first-hand three weeks of cross examination by six different attorneys where lost calls and the absence of the word “bribe” were but a  few of the numerous issues used to create doubt in the minds of jurors. Some of those defense strategies, set out by experienced and clearly talented counsel, played very well in the Africa Sting, but not as much for Boncy and Baptiste, as the eventual verdicts demonstrated.

When those verdicts were announced, it was ultimately the convictions of Boncy and Baptiste that triggered memories about my single biggest decision after I learned I was the target of a criminal FCPA investigation — to waive trial and instead to cooperate with the DOJ.

My attorney who brought me the shocking news about the criminal investigation wanted to have a discussion about the benefits and potential liabilities of proffering and cooperating. I said, “Let’s save that billable hour because I am going in.” I was the client and the target of the investigation. It was my decision to confess and cooperate (in that order) and I was unshakable.

Why? Because I knew I was guilty. I wanted to face justice and do so immediately. In my 2007 proffer sessions, I told the DOJ about crimes they already knew about, like the bribery at the UN. And I told the DOJ about many crimes  they didn’t know about, like bribing a Dutch police official. Although I was cooperating without any guarantees, I understood the weight of my responsibility to tell the DOJ everything, and that’s what I did.

For me, the decision to confess and cooperate was as much emotional as it was about sentence mitigation. I knew that if I wanted someday to change my trajectory and perhaps play a positive role in society, I would have to face the consequences of almost a decade of my unethical and illegal conduct. No lawyer would be able to convince me otherwise, and I didn’t want to engage in stalling or delaying tactics that would slow down that process. That was an introspective decision more than a legal or judicial one.

Nonetheless, at my sentencing in 2012, Judge Leon was very clear that I made the right decision in 2007. Had I not cooperated, he said, I would have faced between eight and eleven years in prison, instead of the eighteen months he sentenced me to.

Today, if an FCPA defendant, or for that matter, if any defendant, facing a similar dilemma of cooperating or going to trial asked me for advice, I would be clear. Reach into your heart and soul (and forget the sentencing guidelines for a few moments) to make what might be the most important decision of your life. Yes, seek the best personal and legal advice, for which there is no substitute. Then do what you think is right, whatever that might be. Once your decision is made, ask your legal team, friends, and family to rally around your decision.

I know some in the legal profession might think otherwise about putting personal feelings above the practicalities of a criminal investigation. But to any potential defendant out there, just remember: The time saved, or the time served, is yours and yours alone.

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Richard Bistrong, pictured above, is a contributing editor of the FCPA Blog and the brand ambassador for Gabbi, the compliance check-in app. He’s the CEO of Front-Line Anti-Bribery LLC and was named by Thomson Reuters in 2018 as a Top 50 Social Influencer in Risk, Compliance and RegTech.