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FCPA “Foreign Official” Clarification
September 23, 2014


    On September 11, 2014, The Washington Legal Foundation petitioned for a writ of certiorari from the Supreme Court to clarify the definition of a “foreign official” under the Foreign Corrupt Practice Act (FCPA).  The Act defines a foreign official as “any officer or employee of a foreign government or any department agency, or instrumentality thereof.”  FCPA specifically bans bribing those classified as “foreign officials.”  However, the petition claims that the word instrumentality is too vague despite the Eleventh Circuit Court’s clarification that instrumentality means “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.”


    
Joel Esquenazi and Carlos Rodriguez, executives of Terra Telecommunications Corporation, were convicted of bribing Haiti Teleco, which at the time was controlled by the Haitian government.  Terra bought phone minutes from Haiti Teleco.  Two executives of Terra were accused of bribing Haiti Teleco to obtain preferential services for their customers from 2001- 2005.  The current petition states, “A principal issue contested at trial was whether Haiti Teleco was an “instrumentality” of the government of Haiti during the years in question.”  If the executives do not fall under this definition, they could not have been in violation of FCPA.  The petitioners claim that the case should be heard in front of the U.S. Supreme Court because the definition of foreign official and the definition of instrumentality are still too broad.

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