There is no doubt exists a paucity of FCPA criminal actions involving non-U.S. citizens who engage in bribery and corruption in foreign countries. The practical realities of in personam jurisdiction make it difficult, if not impossible, to extradite culpable individuals. Foreign courts are often reluctant to send their citizens to face U.S. justice. This is also true for white-collar crimes far beyond the FCPA as was seen in the Volkswagen emissions-testing matter where five of six German nationals have not been brought the U.S. to face justice for their violations of U.S. laws in developing VW’s defeat device and then engaging in perjury to the U.S. government about the defeat device’s existence.
Even with the apprehension of one of the German nationals, VW’s former top emissions compliance manager, Oliver Schmidt, who was departing the United States after a Christmas holiday in the country, the difficulty may be even greater going forward. Schmidt was thrown in jail and denied bail as a flight risk by the trial judge. That ruling was recently upheld by a U.S. court of appeals which found the trial judge correctly weighed the legal factors around the question of bail.
What this means is that countries that might have been inclined to extradite their citizens to the U.S. to await trial may certainly take a dimmer view if those persons are going to be kept in jail, without the right of bail, even under onerous conditions of house arrest and 24/7 monitoring. Schmidt’s case may also negatively impact the U.S. travel industry, as persons who are even under suspicion for FCPA or other white-collar indictments may want to reconsider their travel plans to the United States or any country that extradites to the U.S. Sepp Blatter and his former FIFA cohorts would not even travel to Canada for the Women’s World Cup for fear of arrest by Canadian authorities and extradition to the United States from Canada for their parts in the FIFA corruption scandal.
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