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Last week, the Supreme Court denied a petition for certiorari in United States v. Esquenazi, thereby rejecting the first substantive FCPA-related cert petition to come before the Court. The case involved two former executives of a telecommunications company who were convicted of participating in a scheme to bribe employees of Haiti Teleco, a telephone company in Haiti that was partially owned by the state at the time of the payments. The issue on appeal was whether the employees constituted "foreign officials" within the meaning of the FCPA, which defines foreign officials to include "any officer or employee of a foreign government or any department, agency, or instrumentality thereof." Because the FCPA does not further define "instrumentality," the parties disputed whether Haiti Teleco, as an entity that was only partly-owned by the state, constituted such an "instrumentality." The Eleventh Circuit defined "instrumentality" as an "entity controlled by the government of a foreign country that performs a function the controlling government treats as its own," and found that Haiti Teleco constituted an "instrumentality" under this definition. The Supreme Court's decision to deny cert leaves the Eleventh Circuit's decision intact. The Eleventh Circuit decision supplies some of the first caselaw regarding who counts as a foreign official under the FCPA.
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