On October 6, the U.S. Supreme Court denied a petition for certiorari filed by the defendants in U.S. v. Esquenazi–a significant Foreign Corrupt Practices Act (FCPA) case involving the definition of “foreign official” under that law. The Supreme Court has never heard a FCPA case and, apparently, does not plan to start now.
The request for Supreme Court review was filed on August 14 by defendants Joel Esquenazi and Carlos Rodriguez, who were originally convicted for FCPA violations in August 2011. The two former officials of Terra Telecommunications Corp. were found to have bribed officials at Haiti Teleco, a state-owned Haitian telecommunications company. Esquenazi received the longest sentence ever in an FCPA case–15 years imprisonment–while Rodriguez received a seven-year sentence.
The 11th Circuit Court of Appeals affirmed the convictions in May 2014 in an opinion that centered on the interpretation of a “foreign official” under the statute. The FCPA defines a foreign official as “any officer or employee of a foreign government or any department, agency or instrumentality thereof.” The Esquenazi case focused on whether Haiti Teleco qualified as an “instrumentality” of the Haitian government, with the circuit court ultimately agreeing with the U.S. government that it did. Specifically, the 11th Circuit defined an instrumentality of a foreign government as “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.”
As is usual, the Supreme Court did not provide an explanation for its decision not to grant the Esquenazi petition for cert – the first substantive FCPA petition for cert in the history of the statute. However, some commentators have noted the lack of a circuit split on the issue and opined that the particular facts of this case did not raise a particularly close question as to Haiti Teleco’s government status.
The Supreme Court’s denial of the petition for cert renders final the 11th Circuit’s opinion in Esquenazi. The circuit court opinion’s provides at least some limited guidance from the judiciary on the interpretation of a “foreign official” under the FCPA, a law that has previously seen very little interpretation from the courts.