Bribery Case: Another Example of DOJ’s Intent to Expand Reach of Criminal Law
The Department of Justice continues to show that, even when Congress places limits on the reach of federal criminal statutes, prosecutors will concoct novel theories to try to evade those limits. The latest example of that trend is in the case of Juthamas Siriwan, former governor of the Tourism Authority of Thailand, and her daughter, Jittsopa Siriwan.
The Siriwan prosecution arises out of the 2009 indictment of movie producer Gerald Green and his wife, Patricia Green, for violations of the Foreign Corrupt Practices Act – the first case ever filed against individuals in the entertainment business under that statute. The Greens were accused of paying $1.8 million to receive nearly $14 million in business from the Thai tourism authority between 2002 and 2007, including a contract to manage the Bangkok International Film Festival. In 2009, a federal jury in Los Angeles convicted the Greens, who were each sentenced to six months in prison plus six months of home confinement.
The 2009 indictment also charged the Siriwans with crimes, but not under the FCPA. The government could not pursue the Siriwans under the FCPA, because the statute applies only to individuals and entities who give (or attempt, promise or agree to give) bribes, and not to the recipients of those funds. Instead, in an attempt to avoid the limited scope of the FCPA, the government charged that each wire transfer of the bribes by the Greens to the Siriwans’ bank accounts constituted a transaction designed “to promote the carrying on of” the bribes, and therefore constituted violations of U.S. anti-money laundering statutes.
Siriwan’s lawyers have filed a motion to dismiss the charges, noting that “[n]o court has allowed the making of a payment that is an essential element of the predicate unlawful activity – such as a bribe in a bribery case – to constitute ‘promotion’ of that same activity.” The motion is to be argued in October.
This case will be watched closely by criminal defense attorneys – not only those who focus on FCPA cases, but also those who work in other areas involving overseas activity. A decision in favor of the government in this case could signal an opportunity for government prosecutors to assert enormous extraterritorial reach in the application of the money laundering statutes, and an ability to evade the limitations of the FCPA in seeking to prosecute not only those who give bribes but also the foreign officials who receive them.