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Two businessmen and two former Venezuelan officials charged in investigation related to bribery at state-owned electricity company
On June 24, two businessmen, Luis Alberto Chacin Haddad and Jesus Ramon Veroes, pleaded guilty in federal court in Miami to conspiracy to violate the FCPA. The charges relate to bribes paid to Venezuelan officials at the state-owned and state-run electricity company, Corporación Eléctrica Nacional, S.A. (Corpoelec), in an effort to obtain $60 million in contracts for their Florida-based businesses. Pursuant to their plea agreements, the businessmen will each forfeit at least $5.5 million in profits, as well as Miami-area real estate obtained with the ill-gotten gains. Sentencing is scheduled for September 4.
In addition, on June 27 the Venezuelan officials they allegedly bribed, Luis Alfredo Motta Dominguez (former minister of electrical energy in Venezuela and the head of Corpoelec) and Eustiquio Jose Lugo Gomez (former procurement director at Corpoelec), were charged by eight-count indictment in the Southern District of Florida. On the same day, the same officials were also sanctioned by OFAC. See related InfoBytes coverage here.
On May 9, pursuant to an indictment filed in federal court in Miami without announcement by DOJ, two Ecuadorian citizens were charged with conspiracy to violate FCPA, conspiracy to commit money laundering, and nine counts of money laundering. The indictment was first reported on July 1 by the Financial Times.
The charges against Armengol Alfonso Cevallos Diaz and Jose Melquiades Cisneros Alarcon, who both live in Florida, relate to the ongoing investigation and prosecution of bribery and money laundering at Ecuador’s state oil company, PetroEcuador. To date, the investigation has yielded four guilty pleas. One additional defendant has pleaded not guilty; his case is pending.
See prior FCPA Scorecard coverage here.
Federal Judge denies Ukrainian billionaire’s motion to dismiss criminal charges, and Austrian Supreme Court grants U.S. extradition request
Judge Rebecca Pallmeyer of the United States District Court for the Eastern District of Illinois denied a motion to dismiss filed by Ukrainian billionaire Dmitry Firtash, allowing several criminal charges––including one count of aiding and abetting an FCPA violation––to proceed. Shortly thereafter, the Austrian Supreme Court reportedly agreed to extradite Firtash to the United States, subject to final review by Austria’s Justice Minister. For prior coverage of Firtash’s motion to dismiss, please see here.
Firtash’s motion argued, inter alia, that he could not be liable under the FCPA as a Ukrainian citizen who does not belong to any class of foreign nationals subject to that statute. Because the Seventh Circuit had not reached the precise question that Firtash raised, Firtash cited Second Circuit precedent holding that “foreign nationals may only violate the [FCPA] outside the United States if they are agents, employees, directors, or shareholders of an American issuer or domestic concern.” United States v. Hoskins, 902 F.3d 69, 97 (2d Cir. 2018). Because Firtash is none of these, he claimed to be exempt from FCPA liability.
Judge Pallmeyer disagreed. Putting aside Hoskins, the judge analyzed generally applicable Seventh Circuit and Supreme Court jurisprudence regarding secondary liability, and concluded that a defendant can be liable for aiding and abetting or conspiring to commit a crime even if he or she would be exempt from primary liability for that crime. Judge Pallmeyer acknowledged that the presumption against extraterritorial application “arguably undermined” the Seventh Circuit precedent upon which her opinion relied, but stated that she was “unwilling to disregard clear guidance from the Seventh Circuit” on the subject of secondary liability. In addition to conflicting with Hoskins, Judge Pallmeyer’s opinion supports the broader scope of FCPA liability for foreign nationals that the DOJ has been pushing for years, and marks the beginning of a potential circuit split on the issue of secondary liability under the FCPA.
After a two-week jury trial in the United States District Court for the District of Massachusetts, the CEO of investment firm Haiti Invest, LLC and one of its directors were convicted of conspiracy to violate the FCPA and the Travel Act. Joseph Baptiste, a retired U.S. Army Colonel, was also found guilty of violating the Travel Act and conspiracy to commit money laundering. For prior coverage of the charges against Baptiste and CEO Roger Richard Boncy, please see here.
The evidence that federal prosecutors presented against Boncy and Baptiste included intercepted phone calls in which they discussed their plan to bribe Haitian officials “at all levels of government” in order to obtain governmental approval of a proposed $84 million project to develop a port in northwestern Haiti. In a recorded conversation with undercover agents posing as investors, Boncy and Baptiste allegedly solicited funds and told agents that the funds would be used to bribe the aide of a high-level elected official in Haiti. To conceal the bribes, Boncy and Baptiste allegedly said that they would funnel the agents’ funds through a U.S.-based non-profit organization that Baptiste controlled, which purported to sponsor social programs for Haitian residents.
The case against Boncy and Baptiste began with a sting operation conducted by the FBI in 2017. Boncy and Baptiste are scheduled to be sentenced by Judge Allison D. Burroughs on September 12, 2019.
On June 3, the UK Serious Fraud Office (SFO) announced that it had fined FH Bertling Ltd £850,000 (approximately $1.08 million) for bribes paid to secure contracts in Angola. The SFO started investigating FH Bertling in September 2014 and announced in July 2016 that it had charged the company and seven individuals with making corrupt payments. FH Bertling pleaded guilty in 2017. The SFO found that FH Bertling executives had bribed an agent of the Angolan state oil company to obtain $20 million worth of shipping contracts.
On May 29, the DOJ announced that Jose Manuel Gonzalez Testino, a dual U.S.-Venezuelan citizen, pleaded guilty for his role in a bribery scheme involving Petróleos de Venezuela, S.A. (PDVSA) officials. Gonzalez pleaded guilty in the Southern District of Texas to conspiracy to violate the FCPA, violating the FCPA, and failing to report foreign bank accounts. Gonzalez’s sentencing is set for August 28.
Gonzalez controlled multiple U.S. and international companies that provided goods and services to PDVSA. According to the DOJ, Gonzalez and a co-conspirator paid at least $629,000 in bribes to a former PDVSA official in exchange for favorable business treatment for Gonzalez’s companies. Prior FCPA Scorecard coverage is available here.
On May 24, the SEC announced that it had awarded a whistleblower more than $4.5 million for sending an anonymous tip to a company, triggering an internal investigation within the company to review the allegations, while also sending the tip to the SEC within 120 days of reporting it to the company. Following its internal investigation, the company reported the allegations to the SEC and another agency. As a result of the company’s self-reporting, the SEC initiated its own investigation of the alleged misconduct.
This was the first time a claimant was awarded under SEC Rule 21F-4(c)(3), 17 C.F.R. § 240.21F-3(c), which provides that a whistleblower may be eligible for an award when he or she voluntarily provides the SEC with original information within 120 days of providing it to a company through the company’s internal procedures for reporting allegations of possible violations of law.
The SEC’s whistleblower award order can be seen here.
On May 13, a Hawaiian businessman was sentenced to 30 months imprisonment to be followed by three years of supervised release after pleading guilty in January to a charge of conspiracy to bribe a Micronesian official in violation of the FCPA. The DOJ alleged that the businessman’s consulting company paid $440,000 in bribes to officials to obtain and keep contracts with the Micronesian government worth more than $10 million. One of the officials also pleaded guilty in April. See more previous coverage here.
On May 9, Telefônica Brazil S.A. settled SEC charges that it spent $621,756 on 2014 World Cup tickets and hospitality for Brazilian and foreign government officials. The company will pay $4.125 to settle SEC claims that it violated internal accounting controls and recordkeeping requirements connected to providing 124 World Cup tickets and hospitality to 93 government officials at an average cost per guest of $3,204. The SEC took Telefônica Brazil’s remediation efforts into account, including “enhanced internal accounting controls” and “adopting a new anti-corruption policy and compliance structure.”
Malaysian national extradited to the United States on embezzlement and FCPA charges in 1MDB Fund scheme
On May 6, the DOJ announced that a Malaysian national was extradited to the United States from Malaysia on charges of conspiracy to embezzle and to violate the FCPA’s bribery and accounting provisions in connection with a scheme relating to the 1Malaysia Development Berhad (1MDB) Fund. Ng Chong Hwa, also known as Roger Ng, was a former Managing Director at a financial institution. The indictment against him alleges that between 2009 and 2014, he conspired with others to launder billions of dollars embezzled from 1MDB, including money from three bond offerings underwritten by the financial institution in 2012 and 2013, and that he conspired to bribe government officials in Malaysia and Abu Dhabi to obtain and retain business for the financial institution, including the bond transactions. DOJ alleges that the financial institution received approximately $600 million in fees and revenues from its work for 1MDB, and that Ng and his co-conspirators embezzled more than $2.7 billion from the 1MDB bond deals. In his first court appearance, Ng pleaded not guilty to the charges, and press coverage reported a federal magistrate judge’s statement that DOJ and Ng are engaged in plea negotiations, but Ng’s defense counsel denied the judge’s characterization.
As detailed in prior FCPA Scorecard coverage, alleged co-conspirator and former managing director of the same financial institution, Tim Leissner, pleaded guilty in November 2018 to conspiracy to violate the FCPA and to commit money laundering. Another charged co-conspirator, Low Taek Jho, has not appeared in court.
- Tim Lange to discuss "Ease your pain at the state level: Recommendations for navigating the licensing issues in the states" at the Online Lenders Alliance Compliance University
- Amanda R. Lawrence, Aaron C. Mahler, and Jonice Gray Tucker to discuss "Expanded role for the FTC ahead: Implications for bank and nonbank financial institutions" at an American Bar Association Banking Law Committee Webinar
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- Daniel P. Stipano and Moorari K. Shah to discuss "Vendor management: What is the NCUA looking for?" at the National Association of Federally-Insured Credit Unions BSA Seminar
- Daniel P. Stipano to discuss "Reporting requirements for credit unions: CTRs and SARs" at the National Association of Federally-Insured Credit Unions BSA Seminar
- Sasha Leonhardt and John B. Williams to discuss "Privacy" at the National Association of Federally-Insured Credit Unions Summer Regulatory Compliance School
- Warren W. Traiger to discuss "CRA modernization" at the National Association of Industrial Bankers and the Utah Association of Financial Services Annual Convention
- Benjamin W. Hutten to discuss "Requirements for banking inherently high-risk relationships" at the Georgia Bankers Association BSA Experience Program
- Hank Asbill to discuss "Ethical guidance in conducting internal investigations – The intersection of Yates and Upjohn" at the American Bar Association Southeastern White Collar Crime Institute
- Brandy A. Hood to discuss "RESPA Section 8/referrals: How do you stay compliant?" at the New England Mortgage Bankers Conference
- Daniel P. Stipano to discuss "Risk management in enforcement actions: Managing risk or micromanaging it" at the American Bar Association Business Law Section Annual Meeting
- Daniel P. Stipano to discuss "Navigating the conflicting federal and state laws for doing business with cannabis companies" at the American Bar Association Business Law Section Annual Meeting
- Tim Lange to discuss "Services and value" at the North American Collection Agency Regulatory Association Annual Conference
- Amanda R. Lawrence to discuss "Data privacy litigation" at the Mortgage Bankers Association Regulatory Compliance Conference
- Brandy A. Hood to discuss "How to ace your TRID exam" at the Mortgage Bankers Association Regulatory Compliance Conference
- Melissa Klimkiewicz to discuss "Navigating FHA rules and regs" at the Mortgage Bankers Association Regulatory Compliance Conference
- Jonice Gray Tucker to discuss "HMDA data is out, now what?" at the Mortgage Bankers Association Regulatory Compliance Conference
- Daniel P. Stipano to discuss "Assessing the CDD final rule: A year of transitions" at the ACAMS AML & Financial Crime Conference
- Daniel P. Stipano to discuss "Lessons learned from recent enforcement actions and CMPs" at the ACAMS AML & Financial Crime Conference
- Kathryn L. Ryan to discuss "The state’s role in fintech: Providing an industry framework for innovation" at Lend360
- Amanda R. Lawrence to discuss "How to balance a successful (and stressful) career with greater personal well-being" at the American Bar Association Women in Litigation Joint CLE Conference