On Monday, May 21, 2012, Florida Federal Judge Jose E. Martinez sentenced Jean Rene Duperval, the former director of international relations for Telecommunications D’Haiti S.A.M. ("Haiti Teleco"), the Haitian state-owned telecommunications company, to nine years in prison for his role in a scheme to launder bribes paid to him by two Miami-based telecommunications companies. The sentence is the latest in the very lengthy sentences imposed to the participants in the Haiti Teleco scheme, and marks the second sentence of a foreign official in the case – Mr. Dupreval's sentence was more than twice as long as his predecessor, Robert Antoine, who was sentenced to 48 months in prison in June 2010.
In a series of cases, the Government has alleged that the two companies based in Miami had a series of contracts with Haiti Teleco, the sole provider of land line telephone service in Haiti, that allowed the customers to place telephone calls to Haiti. The Government alleged between 2001 and 2006, over $800,000 was paid to shell companies to obtain favorable contracts with Haiti Teleco.
The case has been closely watched in FCPA circles because the Government not only pursued the employees of the U.S.-based companies that made the payments, but also Messrs. Duperval and Antoine, foreign officials at Haiti Teleco. As a foreign officials, the two could not be charged with violating the FCPA (see, e.g., U.S. v. Blondek, 741 F. Supp. 116, 120 (N.D. Tex. 1990), aff'd sub. nom., U.S. v. Castle, 925 F.2d 831 (5th Cir. 1991)), but the Government used a different, but related approach, by alleging that the funds received and laundered were the proceeds of violations of the FCPA and Haitian bribery law, as well as the U.S. wire fraud statute.
Mr. Antoine pled guilty in March 2010 to conspiracy to commit money laundering, admitting that between May 2001 to April 2003 he accepted bribes from U.S. telecommunications companies and he laundered those through intermediary companies. In June 2010, he was sentenced to 48 months in prison.
As described here, on March 12, 2012, Mr. Duperval was convicted on two counts of conspiracy to commit money laundering and 19 counts of money laundering related to the FCPA scheme. The trial lasted a week, but the jury took only three hours to convict him. The Government claimed that, between 2003 and 2006, the two U.S.-based companies paid a total of $500,000 to two shell companies (as directed by Mr. Duperval) "to obtain various business advantages from [Mr.] Duperval, including the issuance of preferred telecommunications rates, a continued telecommunications connection with Haiti and the continuation of a particularly favorable contract with Haiti Teleco."
In a related case, discussed here, on August 5, 2011, a Florida jury convicted Joel Esquenazi and Carlos Rodriguez, former executives of Terra Telecommunications Corporation, for their roles in a conspiracy to violate the FCPA and commit money laundering. As a defense, Mr. Esquenazi questioned whether payments to benefit Mr. Antoine and Mr. Duperval (employees of state-owned companies, as opposed to the Haitian Government) constituted a violation of the FCPA (an issue unsuccessfully raised in other cases). The Government claimed Messrs. Antoine and Duperval were "foreign officials" and the Court agreed, denying the motion to dismiss: "The plain language of this statute and the plain meaning of this term show that as the facts are alleged in the indictment Haiti Teleco could be an instrumentality of the Haitian government." As discussed here, the two U.S.-based defendants received lengthy sentences when, on October 25, 2011, Mr. Rodriguez was sentenced to seven years in prison and Mr. Esquenazi received a 15-year sentence, which the U.S. Attorney's Office for the Southern District of Florida described as " the longest sentence ever imposed in a case involving the Foreign Corrupt Practices Act."
Mr. Duperval (unlike Mr. Antoine) chose to go to trial. Like Messrs. Esquenazi and Rodriguez, he was convicted by a jury. Not surprisingly, his sentence fell in the same range of those two defendants, and was considerably longer than Mr. Antoine's sentence. Assistant Attorney General Lanny Breuer stated: "Just as we prosecute corrupt businesspeople under the FCPA, we will hold accountable corrupt foreign officials when they seek to launder the proceeds of that bribery through the U.S. financial system. Today’s nine-year prison sentence sends a strong message to foreign officials and others who would facilitate foreign corruption that they will face serious consequences."