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Harry Cassin
Publisher and Editor

Andy Spalding
Senior Editor

Jessica Tillipman
Senior Editor

Bill Steinman
Senior Editor

Richard L. Cassin
Editor at Large

Elizabeth K. Spahn
Editor Emeritus

Cody Worthington
Contributing Editor

Julie DiMauro
Contributing Editor

Thomas Fox
Contributing Editor

Marc Alain Bohn
Contributing Editor

Bill Waite
Contributing Editor

Shruti J. Shah
Contributing Editor

Russell A. Stamets
Contributing Editor

Richard Bistrong
Contributing Editor

Eric Carlson
Contributing Editor

I had a front row seat to a multi-agency enforcement negotiation

In late 2007, while cooperating with one investigatory agency in London, I found out that another agency was also looking for me: Her Majesty’s Revenue and Customs (HMRC) had issued a border watch for me. As I learned then, and we saw in last week’s multi-jurisdictional Airbus resolution, the law sometimes follows individuals and corporations across borders, creating complex negotiations between government agencies.

Given that I was already covertly cooperating with the FBI and another UK investigatory agency, my HMRC trade violations, which occurred while I was working and residing in the UK (2003-2006), created a multi-jurisdictional dilemma. Getting charged by the Crown Prosecution Service (CPS), which already had all the evidence they needed to move their case forward, would have put an end to all of that, and would have complicated what was already an agreed upon DOJ plea deal.

While the multi-jurisdictional “piling on” issue has been in our recent anti-bribery enforcement discourse, the challenge has been around for quite some time. In June 2008, I saw it first hand in an conference room in Northern Virginia, where I sat for three days with my defense attorney, representatives from the FBI, DOJ, HMRC, and CPS. The goal, even if not pre-ordained, was how we might de-conflict what was a highly complex matter for all parties.

The British authorities could have retained their right to see my case finish out in the United States, then seek my extradition to the UK to face justice for offenses that violated their laws. Even if that wasn’t the outcome that anyone was looking for in that conference room, the UK prosecutors had every right to assert their authority to pursue justice for those UK offenses, even if that meant a carbon-copy prosecutions in the United States and UK.

After extended discussions, the agencies decided that while my U.S. offenses were agreed upon and plea finalized, it was not yet signed. Accordingly, with my consent, the UK trade offenses would be added to my U.S. charging documents. The DOJ’s charging me with trade violations that occurred in the UK satisfied the British authorities.

While my plea was originally “conspiracy to make corrupt payments to foreign officials” and to “falsify books and records,” a new charge of exporting “controlled goods without authorization” was added. If one digs into my charging documents, the epicenter of the trade violation was in the UK, even though the offense was tied to a U.S. export violation. To bridge the two, the DOJ included a reference to circumventing the United Kingdom’s Department of Trade and Industry (DTI) license process.

In addition to having my plea re-engineered with the new offense, while the UK investigators were in the United States, I provided additional information in their own investigations, as a good-faith gesture of cooperation. The participants also agreed that my covert cooperation with another UK enforcement agency could continue, but with better inter-agency coordination.

The final result of the meetings occurred in June 2009, with a grant of UK “Immunity From Prosecution” under the Serious Organized Crime and Police Act 2005 Notice Under Section 71(1). I signed the agreement along with a Revenue and Customs Prosecutor whose name would soon become well known in the anti-corruption enforcement community: David Green.

Regarding Airbus and its stunning $4 billion global resolution, the pronouncements of the three enforcement agencies contain mutual acknowledgements, thanks, and appreciation across jurisdictions. SFO Director Lisa Osofsky said, “A resolution of this scope would not have been possible without the commitment, determination and hard work of the SFO staff and our French and American colleagues.”

Speaking as an individual who a decade ago watched my own multi-jurisdictional crucible come to life, it’s clear that the teeth of law enforcement cooperation have certainly been sharpened over time, but those teeth have been around longer than we might think.

And for those executives and commercial teams who are traveling, transiting, and country hopping in regional and global sales roles, remember: It’s not just your passport traveling with you, the law does too.

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