Late week, a federal jury in Brooklyn convicted Javier Aguilar “for his role in a scheme to bribe Ecuadorean and Mexican government officials and to launder money to secure contracts worth hundreds of millions of dollars for his then-employer, Vitol Inc. (Vitol), the U.S. affiliate of the largest independent energy trading firm in the world.” (See here for the prior post).

The trial is believed to be only the 22nd trial in the FCPA’s 47 years.

Which means that FCPA jury instructions are also rare.

Set forth below are portions of the FCPA jury instructions in the trial.

“CORRUPTLY” AND “WILLFULLY” 

AN ACT IS CORRUPTLY DONE IF IT IS DONE VOLUNTARILY AND INTENTIONALLY AND WITH A BAD PURPOSE OR EVIL MOTIVE OF ACCOMPLISHING EITHER AN UNLAWFUL END OR RESULT, OR A LAWFUL END OR RESULT BUT BY SOME UNLAWFUL METHOD OR MEANS. THE TERM “CORRUPTLY” IN THE FOREIGN CORRUPT PRACTICES ACT MEANS THAT THE OFFER, PAYMENT, OR PROMISE WAS INTENDED TO INDUCE A FOREIGN OFFICIAL TO MISUSE HIS OR HER OFFICIAL POSITION.

I HAVE ALREADY DEFINED THE TERM “WILLFULLY,” AND YOU SHOULD APPLY THAT DEFINITION HERE. I ADD ONLY THAT THE INDIVIDUAL NEED NOT HAVE BEEN AWARE OF THE SPECIFIC PROVISION OF THE LAW THAT HE IS CHARGED WITH VIOLATING, OR ANY OTHER SPECIFIC PROVISION.

[A PERSON ACTS “WILLFULLY” IF HE ACTS KNOWINGLY AND PURPOSEFULLY, WITH AN INTENT TO DO SOMETHING THE LAW FORBIDS; THAT IS TO SAY, WITH A BAD PURPOSE EITHER TO DISOBEY OR TO DISREGARD THE LAW. HOWEVER, THE GOVERNMENT NEED NOT PROVE THAT THE DEFENDANT KNEW THAT HE WAS BREAKING ANY PARTICULAR LAW OR ANY PARTICULAR RULE OR WAS AWARE OF ANY PARTICULAR LAW OR PARTICULAR RULE. THE GOVERNMENT MUST ONLY SHOW THAT THE DEFENDANT WAS AWARE OF THE GENERALLY UNLAWFUL NATURE OF HIS ACTS. ]

ANYTHING OF VALUE

[THE FCPA REQURIES] THAT THE INDIVIDUAL OFFERED, PAID, PROMISED TO PAY, OR AUTHORIZED THE PAYMENT OF MONEY OR A GIFT OR ANYTHING OF VALUE. A “THING OF VALUE” CAN TAKE ANY FORM, INCLUDING CASH, CHECK, WIRE TRANSFER, GIFTS, DONATIONS, CONTRIBUTIONS, OR ANYTHING ELSE. IT IS NOT REQUIRED THAT THE INDIVIDUAL PROVIDE OR OFFER THE THING OF VALUE HIMSELF. RATHER, AN INDIVIDUAL WHO ENGAGES IN BRIBERY OF A FOREIGN OFFICIAL INDIRECTLY, THROUGH ANY OTHER PERSON OR ENTITY, IS LIABLE UNDER THE FOREIGN CORRUPT PRACTICES ACT JUST AS IF THE INDIVIDUAL HIMSELF HAD ENGAGED IN THE BRIBERY DIRECTLY. THUS, IF THE INDIVIDUAL AUTHORIZED ANOTHER PERSON TO PAY A BRIBE, THAT AUTHORIZATION ALONE IS SUFFICIENT FOR YOU TO FIND THAT THIS ELEMENT HAS BEEN PROVED.

FURTHERMORE, IT IS NOT NECESSARY THAT THE PAYMENT ACTUALLY TAKE PLACE. INSTEAD, IT IS THE OFFER OR THE AUTHORIZATION THAT COMPLETES THE CRIME. THIS ELEMENT IS SATISFIED IF YOU FIND THAT THE INDIVIDUAL PROMISED OR AUTHORIZED AN UNLAWFUL PAYMENT, EVEN IF YOU BELIEVE THAT THE  PAYMENT WAS NOT ACTUALLY MADE. IT IS SUFFICIENT SIMPLY IF THE INDIVIDUAL BELIEVED THAT A BRIBE WOULD BE OFFERED OR PAID OR THAT HE PROMISED OR AUTHORIZED THE OFFER OR PAYMENT.

KNOWING

[THE FCPA REQUIRES] THAT THE OFFER TO PAY, PAYMENT, PROMISE TO PAY, OR AUTHORIZATION OF PAYMENT WAS TO A FOREIGN OFFICIAL, OR TO ANY OTHER PERSON OR ENTITY, WHILE THE INDIVIDUAL KNEW THAT ALL OR A PORTION OF THE PAYMENT OR GIFT WOULD BE OFFERED, GIVEN, OR PROMISED, DIRECTLY OR INDIRECTLY, TO A FOREIGN OFFICIAL.

I HAVE ALREADY DEFINED THE TERM “KNOWINGLY,”  AND YOU ARE INSTRUCTED TO APPLY THAT DEFINITION HERE.

[A PERSON ACTS “KNOWINGLY” IF HE ACTS INTENTIONALLY AND VOLUNTARILY AND NOT BECAUSE OF IGNORANCE, MISTAKE, ACCIDENT, OR CARELESSNESS. WHETHER THE DEFENDANT ACTED KNOWINGLY MAY BE PROVEN BY HIS CONDUCT AND BY ALL OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE CASE. ]

I ALSO ADD THAT A PERSON’S STATE OF MIND IS KNOWING WITH RESPECT TO CONDUCT, A CIRCUMSTANCE, OR RESULT IF: (1) SUCH A PERSON IS AWARE THAT SUCH PERSON IS ENGAGING IN SUCH CONDUCT, THAT SUCH CIRCUMSTANCE EXISTS, OR THAT SUCH RESULT IS SUBSTANTIALLY CERTAIN TO OCCUR; OR (2) SUCH PERSON HAS A FIRM BELIEF THAT SUCH CIRCUMSTANCE EXISTS OR SUCH RESULT IS SUBSTANTIALLY CERTAIN TO OCCUR. A PERSON IS DEEMED TO HAVE KNOWLEDGE OF A CIRCUMSTANCE IF THE EVIDENCE SHOWS THAT HE WAS AWARE OF A HIGH PROBABILITY OF THE EXISTENCE OF SUCH CIRCUMSTANCE, UNLESS HE ACTUALLY BELIEVES THAT SUCH CIRCUMSTANCE DOES NOT EXIST.

FOREIGN OFFICIAL

THE TERM “FOREIGN OFFICIAL” MEANS ANY OFFICIAL OR EMPLOYEE OF A FOREIGN GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR INSTRUMENTALITY THEREOF, OR OF A PUBLIC INTERNATIONAL ORGANIZATION, OR ANY PERSON ACTING IN AN OFFICIAL CAPACITY FOR OR ON BEHALF OF SUCH GOVERNMENT OR DEPARTMENT, AGENCY OR INSTRUMENTALITY THEREOF, OR FOR OR ON BEHALF OF ANY SUCH PUBLIC INTERNATIONAL ORGANIZATION.

THE PARTIES AGREE THAT (A) THE MINISTRY OF HYDROCARBONS WAS A DEPARTMENT OR AGENCY OF THE GOVERNMENT OF ECUADOR, AND (B) THAT PETROECUADOR WAS AN INSTRUMENTALITY OF THE GOVERNMENT OF ECUADOR. ACCORDINGLY, I INSTRUCT YOU THAT ANY OFFICER OR EMPLOYEE OF THE MINISTRY OF HYDROCARBONS OR PETROECUADOR, OR ANYONE ACTING IN AN OFFICIAL CAPACITY FOR OR ON BEHALF OF THE MINISTRY OF HYDROCARBONS OR PETROECUADOR, EVEN IF NOT AN OFFICER OR EMPLOYEE OF THE MINISTRY OF HYDROCARBONS OR PETROECUADOR, WAS A “FOREIGN OFFICIAL” UNDER THE FOREIGN CORRUPT PRACTICES ACT.

PURPOSE OF THE OFFER OR PROMISE 

[THE FCPA REQUIRES] THAT THE OFFER, PROMISE, PAYMENT OR AUTHORIZATION WAS INTENDED FOR ANY ONE OF FOUR PURPOSES: (A) TO INFLUENCE ANY ACT OR DECISION OF A FOREIGN OFFICIAL IN HIS OFFICIAL CAPACITY; (B) TO INDUCE SUCH A FOREIGN OFFICIAL TO DO OR OMIT TO DO ANY ACT IN VIOLATION OF THE LAWFUL DUTY OF SUCH FOREIGN OFFICIAL; (C) TO SECURE ANY IMPROPER ADVANTAGE; OR (D) TO INDUCE SUCH A FOREIGN OFFICIAL TO USE HIS OR HER INFLUENCE WITH A FOREIGN GOVERNMENT AND AGENCIES AND INSTRUMENTALITIES THEREOF TO AFFECT AND INFLUENCE ACTS AND DECISIONS OF SUCH GOVERNMENT AND AGENCIES AND INSTRUMENTALITIES.

THE OFFER TO PAY, PAYMENT, PROMISE TO PAY, OR AUTHORIZATION OF PAYMENT DOES NOT NEED TO HAVE BEEN FOR ALL OF THESE PURPOSES. IF THE OFFER TO PAY, PAYMENT, PROMISE TO PAY, OR AUTHORIZATION OF PAYMENT WAS FOR ANY OF THESE PURPOSES, OR MORE THAN ONE, THIS ELEMENT HAS BEEN MET.

OBTAIN OR RETAIN BUSINESS

THE FINAL ELEMENT IS THAT THE OFFER, PROMISE, PAYMENT OR AUTHORIZATION WAS MADE TO ASSIST THE DOMESTIC CONCERN — THAT IS, EITHER THE DEFENDANT OR VITOL, INC. — IN OBTAINING  OR RETAINING BUSINESS FOR OR WITH, OR DIRECTING BUSINESS TO, ANY PERSON OR COMPANY. “OBTAIN BUSINESS” HAS ITS NORMAL MEANING, THAT IS, TO GET, TO ACQUIRE, OR TO SECURE A PERSON OR COMPANY’S BUSINESS. “RETAIN BUSINESS” ALSO HAS ITS NORMAL MEANING, THAT IS, TO KEEP OR CONTINUE TO HAVE A PERSON OR COMPANY’S BUSINESS.

IT IS NOT NECESSARY THAT ANY PERSON OR COMPANY ACTUALLY OBTAINED OR RETAINED ANY BUSINESS AS A RESULT OF THE UNLAWFUL OFFER, PAYMENT, PROMISE, OR GIFT, ONLY THAT THE DEFENDANT INTENDED TO ASSIST THE DOMESTIC CONCERN IN OBTAINING OR RETAINING BUSINESS FOR OR WITH ANY PERSON OR COMPANY.

The jury was also instructed as follows:

SOLICITATION OF BRIBE NOT A DEFENSE FOR PURPOSES OF THE FOREIGN CORRUPT PRACTICES ACT, IT DOES NOT MATTER WHO FIRST SUGGESTED THAT A CORRUPT OFFER, PAYMENT, PROMISE OR GIFT BE MADE. THE FOREIGN CORRUPT PRACTICES ACT PROHIBITS ANY CORRUPT OFFER OR PAYMENT OR GIFT, IF MADE FOR ONE THE BUSINESS PURPOSES I DESCRIBED, REGARDLESS OF WHO FIRST SUGGESTED IT. IT IS NOT A DEFENSE IF THE OFFER OR PAYMENT OR GIFT WAS FIRST SUGGESTED OR REQUESTED BY SOMEONE OTHER THAN THE DEFENDANT, OR DEMANDED ON THE PART OF A FOREIGN OFFICIAL AS A PRICE FOR DOING BUSINESS OR FOR ANOTHER BENEFIT, OR THAT THE BUSINESS MAY HAVE BEEN HARMED IF THE PAYMENT OR GIFT WAS NOT MADE. THAT THE OFFER TO PAY, PAYMENT, PROMISE TO PAY, OR AUTHORIZATION OF PAYMENT OR GIFT MAY HAVE BEEN FIRST SUGGESTED BY SOMEONE ELSE, INCLUDING THE RECIPIENT, IS NOT AN EXCUSE IF YOU FIND THAT THE DEFENDANT DECIDED TO OFFER OR MAKE A CORRUPT PAYMENT, NOR DOES IT ALTER THE CORRUPT PURPOSE WITH WHICH THE OFFER TO PAY, PAYMENT, PROMISE TO PAY, OR AUTHORIZATION OF PAYMENT OR GIFT WAS MADE.

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