The 2011 Haiti Teleco FCPA matter brought some of the most dramatic results of any recent FCPA matter on record.
For two of the defendants who went to trial in October 2011, it was very costly in terms of their personal freedom. After a trial, the judge sentenced Joel Esquenazi to 15 years in prison for his role in the case; his co-defendant Carlos Rodriguez was given a seven-year sentence. Both were the longest sentences ever doled out for FCPA convictions at trial or guilty pleas.
Four other individuals pled guilty and were sentenced for their roles in the matter. The first two were in 2009. Antonio Perez pled guilty and was sentenced to two years in jail. Juan Diaz pled guilty and was sentenced to 57 months in jail. The next year, Jean Fourcand pled guilty and was sentenced to six months in prison. Finally, in a related action, a former director of international affairs for Haiti Teleco, who had received the bribe, pled guilty to money laundering. In 2010 Robert Antoine was sentenced to 48 months in prison.
Perhaps more significantly, Esquenazi and Rodriguez appealed their convictions, claiming in part that representatives of state-owned enterprises were not covered by the FCPA. Their appeal led to the 11th Circuit Court of Appeals decision, generally known as the Esquenazi decision, which unequivocally answered the question of whether representatives of state-owned enterprises were not covered by the FCPA, with a resounding affirmative.
The court also set up a two-prong test to determine whether a state-owned enterprise was an instrumentality under the FCPA. The Esquenazi decision separates the analysis into two basic questions (a) does a foreign government control an entity and (b) does the entity perform a function the foreign government treats as its own? The court of appeals then breaks the analysis of these two questions into a series of inquiries which are used by compliance professionals to this day.
The sordid Haitia Teleco matter may finally be winding down as it was recently reported that the final fugitive from justice, Amadeus Richer, was arrested in February and made an initial court appearance in Miami the last week in February. His indictment alleges that as a director of Cinergy Telecommunications, he was involved in payments of more than $1.4 million to representatives of Haiti Teleco.
Given his justice-free life free from his 2011 indictment until now, one can only surmise the court will throw the proverbial FCPA sentencing guidelines book at him.
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