Mistrial Declared in Foreign Corrupt Practices Act Case After Jury Could Not Reach Verdict
On Thursday, July 7, 2011, U.S. District Judge Richard Leon of the District of Columbia declared a mistrial in a criminal foreign bribery case under the Foreign Corrupt Practices Act (“FCPA”) involvingallegations of a corrupt deal to sell $15 million in supplies to Gabon’s Ministry of National Defense. Prosecutors from the Department of Justice alleged that defendants John Wier III, Pankesh Patel, Lee Allen Tolleson and Andrew Bigelow tried to bribe Gabonese officials to win contracts.
The government built its case through an undercover operation where undercover FBI agents met with the defendants and purportedly agreed to participate in the illegal deal. The case is significant because the four individuals are the first to go to trialoutof 22 military and law enforcement equipment industry executives arrested in July 2010 as part of an FBI sting. This case marked the first large-scale use of undercover techniques, commonly seen in drug or fraud cases, in an FCPA bribery investigation and it is the largest prosecution of individuals since the government began enforcing the FCPA over 30 years ago.
The purpose of the Foreign Corrupt Practices Act is to make it unlawful for certain classes of U.S. persons and entities to make payments to foreign government officials to assist in obtaining or retaining business. Specifically, the anti-bribery provisions of the FCPA prohibit any willful or corrupt offer, payment, promise to pay, or authorization of the payment of money or anything of value to any person, while knowing that such money or thing of value will be offered to a foreign official to influence the foreign official in his or her official capacity to do an act in violation of his or her lawful duty, or to secure any improper advantage in order to assist in obtaining or retaining business.
Throughout the trial, the defense focused on and impeached the credibility of the prosecution’s top informant, to show the jury that he was unreliable and unsavory. Richard Bistrong, the informant who helped carry out the FBI’s sting operation, had his own history of past bribery crimes, among other assorted wrongdoing.
The jury began deliberations on June 28, and on July 7, indicated that it was “hopelessly deadlocked.” As a result, the judge declared a mistrial, meaning no verdict; however, the prosecution intends to retry the case against all four defendants in front of a different jury. This case is an example of the energized enforcement of the FCPA, in support of which the government is willing to employ undercover operatives to engage in sting operations to sniff out violations of the FCPA. So far, although it engaged in these new investigative tactics, and despite having taken the case to trial, the government was not able to obtain convictions.