On February 9, 2015, the Eleventh Circuit affirmed the conviction and nine-year prison sentence of Jean Rene Duperval on charges of accepting bribes while he served as the director of Haiti’s state-owned telecommunications company. This decision represents the latest development in a string of recent enforcement actions by the U.S. Department of Justice (“DOJ”) against bribe-taking foreign officials.

Historically, the DOJ has not targeted this category of bad actors because the prosecutorial tool used to combat foreign bribery—the Foreign Corrupt Practices Act (“FCPA”)—does not extend to the prosecution of foreign officials who solicit and accept bribes. However, the DOJ recently has changed course by side-stepping the FCPA and instead prosecuting these foreign officials under other laws, most commonly the Money Laundering Control Act (“MLCA”) and related conspiracy charges.

Jenner & Block authors have published a full length article, available here, which examines whether the DOJ’s targeting of bribe-taking foreign officials under the MLCA is an illegal end run around the limitations of the FCPA. The article reviews the jurisdictional scope of the FCPA, and the Fifth Circuit’s decision in United States v. Castle, which clarified that bribetaking foreign officials are outside the FCPA’s reach.

The article further discusses the DOJ’s bellwether prosecution of Thai official Juthamas Siriwan on MLCA charges relating to bribes she accepted during her tenure as governor of the Tourism Authority of Thailand. In the early stages of the Siriwan prosecution, Judge George Wu of the Central District of California suggested that charging a foreign official under the MLCA potentially violates congressional intent because lawmakers meant to shield bribetaking foreign officials from prosecution when drafting the FCPA. Siriwan’s U.S. prosecution was subsequently stayed pending the outcome of her prosecution in Thailand, and during that time, the DOJ has managed to successfully convict a number of bribe-taking foreign officials on MLCA charges without raising the same judicial concerns expressed by Judge Wu. While the recent conviction of Jean Rene Duperval may suggest a resignation to the DOJ’s approach of using the MLCA, no court has formally addressed the concerns raised by Judge Wu, and these concerns could pose a legal hurdle that the DOJ may need to overcome in future prosecutions.

Click here to access the full-length article, which is currently available in English.