FCPA: Were the Sting Trials Doomed From the Start?

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The authors had front row seats to the challenges facing the government in the Foreign Corrupt Practices Act (FCPA) Sting trials, having represented a client who obtained a mistrial when the jury failed to reach a unanimous verdict. This article reviews three key issues in the framing of the FCPA Sting cases, which involved the FBI's January 2010 arrest in Las Vegas of 22 persons in the military and law enforcement products industry. After a year of intensive discovery and three guilty pleas, the first trial of four defendants resulted in a hung jury and a mistrial was declared. The second trial, of six defendants, resulted in acquittals. Before the third trial (of the last of the defendants) the government dismissed all charges with prejudice. This article reviews the effects of the choice of the District of Columbia as venue, the government's choice of informant, and the prosecutor's miscourse investigative correction, which avoided use of the word "bribe" when describing the payments to the defendants. The judge in the FCPA Sting trials expressed hope that the DOJ and FBI would learn from their experience in this case to achieve better prosecutions of individuals under the FCPA. The article, co-authored by Lauren R. Randell and David S. Krakoff, was published in the September 2012 issue of "Business Crimes Bulletin," a publication of Law Journal Newsletters (ALM Media).

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