We often hear corporations claim it was the ubiquitous “rogue employee” who was solely responsible for some corporate malfeasance. The former CEO of Wells Fargo took this position to its logical extreme when he alleged it was some 5,300 terminated Wells Fargo employees who were responsible for the system fraud engaged in by the bank for years in opening up fraudulent bank accounts and bank cards for bank customers. However The Man From FCPA rarely hears it back from the employee side. (Although one convicted FCPA felon did relate, his company’s bribery scheme was not his fault as he was only “the bag man” in paying the bribes and not the mastermind.)

So it is mildly interesting that former head of emissions compliance in the U.S. for Volkswagen Oliver Schmidt is reported to have claimed “he was a minor player misled by company lawyers and information technology specialists.” While it is not the full Sgt. Schultz defense (the Master Sergeant constantly in denial of his prisoners’ antics—“I see nothing! I hear nothing! I know nothing!”—in the late 1960s television show, “Hogans Heroes”), but as the defendant is a German national, it is at least inspired by his well-known television countryman. Schmidt presented his version in his attempt to post bail and gain a measure of freedom from his pre-trial incarceration. In his pleadings, Schmidt claims the false information he provided U.S. federal and state regulators was “guided, at times by internal legal advice and given his lack of relevant technical experience, he relied on explanations given by diesel experts.”

While The Man from FCPA is not a criminal lawyer practitioner, it would appear that Schmidt has zero chance of the trial court granting bail and allowing him out of jail. For any foreign national, the flight risk is simply too great. This is even more dire given that Germany typically will not extradite its citizens outside the European Union. A long sit in jail may well persuade Schmidt that it is in his best interest to cooperate more fully and start to “name-names” of those VW execs who did know about the fraudulent emissions program and even the lawyers who guided Schmidt’s false statements to regulators. 

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