In the Courts

On Aug. 14, the long-running and highly publicized Foreign Corrupt Practices Act (FCPA) saga of Joel Esquenazi and Carlos Rodriguez continued, as the former Miami-based executives petitioned the United States Supreme Court for a writ of certiorari to review the United States Court of Appeals for the Eleventh Circuit's landmark May 2014 decision. In the Eleventh Circuit decision, as previously reported in the July edition of “In the Courts,” the court affirmed the convictions of Esquenazi and Rodriguez in connection with bribes made to employees of Telecommunications d'Haiti SAM (Haiti Teleco), the Haitian state-owned telecommunications company. In doing so, the court defined an “instrumentality” under the FCPA 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 met this definition (thus rendering its employees “foreign officials” to whom the payment of ' or promise to pay ' anything of value is prohibited).

While the Eleventh Circuit noted in its decision that the case was not close, specifically remarking that Haiti Teleco “would qualify as a Haitian instrumentality under almost any definition we could craft,” its pronouncement of a non-exhaustive, five-part test as the means to determine whether an entity qualified as an instrumentality, coupled with the fact that the contours of the FCPA are rarely exposed to judicial review, led most white-collar practitioners to anticipate the petition to the Supreme Court for review of the decision interpreting the nearly 40-year-old statute.