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When it comes to the Foreign Corrupt Practices Act’s prohibition on bribing a foreign official, just who, pray tell, does the U.S. government consider a foreign official? It’s a question that’s seldom come before the courts, but now, for the first time, is being considered at the appellate level—prompting the U.S. Department of Justice to weigh in on the definition through a response brief filed Tuesday. The key word at heart of the appeal before the U.S. Court of Appeals for the Eleventh Circuit is “instrumentality.” In the language of the FCPA, a “foreign official” constitutes an “officer or employee of a foreign government or any department, agency, or instrumentality thereof.” Last year, two former executives of Terra Telecommunications were convicted of taking part in a scheme to bribe officials at the state-owned telecommunications company Haiti Teleco. As CorpCounsel.com sibling publication The AmLaw Litigation Daily recently summed up:
Prosecutors had successfully argued that Haiti Teleco was an “instrumentality” of the Haitian government, thereby making its employees “foreign officials.” Joel Esquenazi, the former president of Terra, was given a 15-year sentence by Miami federal district judge Jose Martinez—the longest sentence in FCPA history, while Carlos Rodriguez, Terra’s former vice-president, got seven years.