In a case against the recipient of bribes paid in a scheme by executives of US companies to violate the Foreign Corrupt Practices Act (FCPA), the US Court of Appeals for the Eleventh Circuit recently affirmed the conviction and sentence of a Haitian telecommunications executive. The executive was sentenced to 108 months imprisonment followed by three years of supervised release for charges of laundering money derived from violations of the FCPA.
Defendant Jean Rene Duperval was the Director of International Affairs at Telecommunications D’Haiti (Teleco). He was charged with participating in two schemes in which US companies gave him bribes in exchange for favors from Teleco, namely the renewal of multi-million dollar telecommunications contracts. To conceal the bribes, Duperval had the US companies transfer the corrupt payments to two companies, one owned by his brother and one shell company he established, before transferring the money to himself. Even though the money laundering took place entirely in the US, the district court added a two-level sentencing enhancement because a substantial part of the fraudulent scheme, including wire fraud, occurred outside of the US. Duperval appealed the decision, arguing the government had failed to establish an underlying FCPA violation, in part because there was insufficient evidence to find that Teleco was an instrumentality of the government of Haiti as required by the statute, and because the district court abused its discretion in denying his request for jury instruction of the FCPA exception for “routine governmental action.”
The court of appeals upheld the determination that Teleco was an instrumentality of Haiti despite conflicting evidence on the issue. An instrumentality is defined as an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own. The government presented ample evidence, including that the Central Bank of Haiti owned 97 percent of the shares in Teleco and granted a telecommunications monopoly to it, which supported the finding that Haiti controlled Teleco and treated the entity as its own. Further, despite Duperval’s argument that he was only “administering” the contracts within their terms, the Court also determined that the district court did not abuse its discretion in denying Duperval’s request for a jury instruction on the exception for routine governmental action. The court explained that the routine governmental action exception to the FCPA is very limited, and used only for actions that are “largely non-discretionary, ministerial activities performed by mid- or low-level foreign functionaries.” Duperval’s administration of a multi-million dollar telecommunication contract did not fit into that category. Consequentially, his conviction and sentence were affirmed.
US v. Duperval, No. 12-13009 (11th Cir. Feb. 9, 2015).