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Why anti-bribery training should always include an AML module

It’s nearly impossible to violate the FCPA’s anti-bribery provisions without committing a money laundering offense. Over the past five years, 85 percent of all individuals indicted for FCPA offenses have also faced money laundering charges. Do corporate employees understand their dual exposure to criminal prosecution for FCPA offenses and money laundering?

The U.S. anti-money laundering law is 18 U.S.C. §1956. It’s a potent weapon for prosecutors because of a low bar for conviction with potentially severe penalties. While FCPA convictions carry penalties of up to five years in prison, defendants convicted of money laundering face up to 20 years in prison and fines of a half-million dollars or more.

What’s a money-laundering offense? Knowingly using money that comes from illegal activity; trying to conceal or disguise the nature, location, source, ownership, or control of the proceeds of unlawful activity; or trying to avoid reporting a transaction that has to be reported under state or federal law. That covers just about anything to do with bribery.

Foreigners are subject to the U.S. anti-money laundering law if any part of their transaction happens in the United States, if they use property in which the U.S. has an interest (through a judgment, lien, or court order), or if they maintain a bank account at a financial institution in the U.S.

Prosecutors often bring both substantive money-laundering counts and conspiracy counts in FCPA-related indictments, but they sometimes bring the conspiracy counts alone in FCPA indictments.

Proving a federal money-laundering conspiracy is another low bar for prosecutors. They only need to show that a defendant, working with someone else, was “trying to conceal or disguise the nature, location, source, ownership, or control of the proceeds of unlawful activity.”

The penalty for a money-laundering conspiracy conviction is the same as for a substantive money-laundering offense — up to 20 years in prison and a fine of a half-million dollars or more.

Again, do most corporate employees with exposure to FCPA offenses understand their nearly automatic exposure to money-laundering risks? I doubt it.

Sales staff, for example, probably think of money laundering as a crime drug runners commit, or a problem only banks have to worry about. Those ideas come naturally from daily news feeds and can mislead people, even corporate employees who receive periodic anti-corruption training.

If the DOJ connects money laundering to most FCPA anti-bribery offenses, shouldn’t compliance trainers do the same?

There’s often a teachable moment whenever prosecutors announce another individual indictment for FCPA anti-bribery offenses. (There have been at least 40 FCPA indictments of individuals since 2017, and 34 included money laundering counts).

Compliance trainers can use real events to show how often FCPA defendants face potential jail time of five years for bribery and 20 more years for money laundering.

That should help convince any corporate employee to steer clear of bribery.

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