Many Europeans wonder why the U.S. Justice Department does not prosecute foreign officials who receive bribes in violation of the FCPA. The reason is that the FCPA is a supply-side law, which (unlike the U.K. Bribery Act), does not criminalize the receipt of bribes; only the payment of them. Some commentators claim this opens a gap in U.S. enforcement efforts towards the international fight against bribery and corruption.
The Justice Department, however, does have other law enforcement tools available.
One of those key tools was on display Monday when the Justice Department announced a criminal prosecution against a Russian national, Vidam Mikerin (who was a foreign official because he worked under an instrumentality of the Russian government), for his role in a bribery scheme involving a Russian company called Tenex. According to the FCPA Blog, “Mikerin was a director of the Pan American Department of JSC Techsnabexport (Tenex). Tenex, based in Moscow, is a subsidiary of Russia’s State Atomic Energy Corporation. It acts as the sole supplier and exporter of Russian Federation uranium and uranium enrichment services to nuclear power companies worldwide.”
While residing in the United States, Mikerin was involved in a scheme to supply Russian uranium to the United States, where it was used in nuclear-power plants to generate electricity. Much of that uranium came from decommissioned Russian and Soviet nuclear warheads. Two U.S. businesses also involved the bribery and corruption scheme were identified as an Ohio company formerly known as Westerman Cos. (acquired by Worthington Industries Inc. in 2012 and now operating as Worthington Cylinders) and a Maryland transportation company, Transportation Logistics International.
The interesting thing about the charges brought against Mikerin were that they were all part and parcel of the bribery and corruption scheme which violated the FCPA. According to his plea agreement, Mikerin was charged with transferring alone or with others “to a place outside the United States with the intent to promote the carrying of a specific unlawful activity, to wit, the FCPA violations.” The plea agreement detailed the dates, amounts, and locations to which the funds used to pay bribes for the Russian uranium were made.
This use of the money laundering statute against a foreign official, although rare, has been used before in the fight against international bribery and corruption. The most recent (and indeed one of the most powerful) example was against the 11 non-U.S. citizens in the FIFA corruption case announced in May. The charges against these non-U.S. citizens was for money laundering. The Mikerin enforcement action demonstrates that the United States will go after corrupt non-U.S. foreign officials.