What is the Foreign Corruption Practices Act?
Back in the late 1970s, the United States government enacted what is called the Foreign Corruption Practices Act (FCPA). This act was created in order to make it unlawful for U.S. citizens and certain issuers of foreign securities to knowingly garner or retain business or gain an improper business advantage from foreign officials through payments, gifts, or anything else of value that could be considered bribery.
This includes the willful use of mail delivery systems or “any means of instrumentality” (which can include but is not limited to electronic communications, banking systems, etc.) to directly or indirectly influence a foreign official to take acts or knowingly omit an act that would ultimately and unlawfully benefit — either monetarily or otherwise — the party attempting to persuade the foreign official.
Since its creation in the 1970s, this act has been amended several times in order to best reflect the state of business and communications and new means in which potential crimes may be committed, though, as you’ll see in the example below, when boiled down to their essence, no matter how the crime may be conducted, they often just amount to old fashioned bribery.
What a violation of the Foreign Corruption Practices Act looks like in practice
Sometimes when it comes to business, people will do whatever it takes to get ahead and gain an advantage. So was the case with an Englewood Cliffs, New Jersey man who ultimately pleaded guilty to paying a foreign official some $100,000 in bribes in exchange for business contracts.
The bribes took place over a year-long period between the New Jersey man and a high-ranking Korean Navy official. The New Jersey man, an influential employee of two New Jersey-based companies, was able to obtain and retain business contracts with the Republic of Korea’s Defense Acquisition Program Administration, an agency that exists within its Ministry of National Defense.
These acts by the New Jersey man were constituted as bribery and a violation of the FCPA for multiple reasons. His bribes helped him gain an improper business advantage by procuring non-publicly available information about the military contracts.
Additionally, he used this non-publicly available information to actually secure the contracts for the companies he represented. Lastly, he used these bribes as leverage to gain further influence within the Republic’s Defense Acquisition Program Administration.
The man used a personal bank account in the United States to wire the money to the Korean official’s own account, one that was reportedly held in Australia. The man was charged with one count of violating the anti-bribery restrictions as outlined in the FCPA.
The New Jersey man, in order to avoid going to trial, took a deal from the U.S. government. He has yet to be sentenced, but faces serious consequences for his violation of the law.
What is the punishment for violating the Foreign Corruption Practices Act?
The penalties related to violating the Foreign Corruption Practices Act are no joke. The New Jersey man referenced above, as well as any person who is convicted of crimes related to the Foreign Corruption Practices Act, faces a potential five years in prison.
In addition to incarceration, fines are typically calculated at twice the gross profits gained by the violator or lost by the victim.
What do I do if I’ve been accused of bribery or of violating the Foreign Corruption Practices Act?
Being accused of bribery or of violating the Foreign Corruption Practices Act is a serious charge, one that requires an equally serious approach in your response.
Secure legal counsel
In the United States, when you are accused of a crime, you have the right to an attorney. It is incredibly important that you get the aid of an attorney as quickly as possible so that you can work together to prepare your defense.
The legal system is complicated and you’re facing serious charges. Getting legal counsel that is experienced in the arena that you have been charged in and has shown a track record of successfully representing their clients in these cases is the bare minimum in securing the best possible outcome for your situation.
Use your right to remain silent
It’s not just a thing people say in the movies. Anything you say will be used against you in a court of law. We always recommend that you remain respectful to law enforcement, but this does not mean that you should jeopardize your freedom by answering questions that have not been approved by your defense attorney.
Your remaining silent should also apply to social media activities, email, or conversations with anyone that your attorney hasn’t explicitly approved for you to speak with. The smaller your circle of communication, the less likely it will be for you to lose control of the narrative surrounding your case.
Be cooperative with your attorney
Your defense attorney’s job is to do all they can to protect your freedom. This means they shouldn’t be surprised by any details of your case that might emerge. Even if it’s embarrassing information, it is in your best interest to be open with them about as much as possible. Files, evidence, and the like should all be shared with them so that they can create the best possible defense for you.
Don’t panic!
We know that this is a stressful and perhaps even scary situation, but panicking can lead to erratic behaviors that won’t be interpreted positively by the prosecution, the press, or even potential jurors. Try to stay calm, and don’t be afraid to share your thoughts and feelings with your attorney. They’re here to help you stay the course.
Facing bribery-related charges? Don’t know where to turn? You need the Law Offices of Robert J. DeGroot!
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