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FBI Dedicating More to Anti-Bribery FCPA Enforcement, Daily Business Review

April 22, 2015

Reprinted with permission from the April 22, 2015 edition of Daily Business Review© 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - reprints@alm.com.

On March 30, the FBI announced it has established three "dedicated international corruption squads" to investigate violations of the Foreign Corrupt Practices Act and "kleptocracy crimes."

This announcement followed January news reports that the FBI planned to "bulk up foreign bribery efforts" in 2015 by more than tripling the number of agents focused on overseas anti-bribery enforcement this year to more than 30 from around 10.

The FBI's three new international corruption squads are expected to significantly extend the capabilities of the U.S. Department of Justice and the U.S. Securities and Exchange Commission to gather evidence for prosecuting FCPA violations.

As a result, companies subject to the FCPA should expect to see more aggressive investigative tactics, including increased cooperation between the FBI and foreign law enforcement authorities, and a greater reliance on proactive investigative tools to detect and monitor misconduct. Such tools in the hands of investigators in the U.S. and abroad will include undercover and electronic surveillance traditionally reserved for the investigation and prosecution of organized crime.

Overseas Partners

The FBI's three new squads will be based in the bureau's New York City, Los Angeles and Washington field offices. The squads will be composed of agents, analysts and other professional staff with experience investigating white-collar crimes. And, they will have access to a broad set of investigatory resources, including "financial analysis, court-authorized wiretaps, undercover operations [and] informants." They will also work closely with the DOJ's fraud section, the SEC's FCPA unit and "overseas law enforcement counterparts."

Hailed as an important part of the bureau's investigative arsenal, the FBI's international law enforcement partnerships are facilitated by its network of legal attache offices situated strategically around the world. For example, the FBI's announcement comes on the heels of Spanish-language media reports that law enforcement authorities in Colombia have been working with the FBI on a bribery probe of the country's state-run oil company, Ecopetrol SA.

Six current and former Ecopetrol executives were arrested in March in connection with the investigation and charged with accepting bribes. One of the executives, David Duran, has been named in a closely watched FCPA prosecution in the United States brought against former executives of PetroTiger Ltd., a British Virgin Islands oil and gas company with operations in Colombia and offices in the U.S.

Two of the former PetroTiger executives—including the former general counsel and one of the former co-CEOs—have pleaded guilty to FCPA conspiracy charges. The other former co-CEO, Joseph Sigelman, has been indicted on FCPA and money laundering crimes but is fighting the charges.

White-collar Wiretaps

Although the FBI has traditionally reserved wiretaps and undercover agents for investigating organized crime syndicates, it is increasingly using such tactics in the white-collar context. For example, undercover surveillance evidence, including a body wire video, will likely be used in the upcoming Sigelman trial.

In a March 2014 speech, then-Acting Assistant Attorney General Mythili Raman warned, "Those who are committing acts of foreign bribery right now should be acutely aware that the middleman they are engaging could be an undercover agent [and] that the telephone calls they are making may be being recorded pursuant to a court order."

Raman further stated that the DOJ relied on a cooperating witness, wiretaps, body wires and surveillance in its investigation of Frederic Cilins, a French citizen who pleaded guilty in March 2014 to obstructing a federal investigation of FCPA misconduct.

In a September 2014 speech, Marshall L. Miller, principal deputy assistant attorney general of the DOJ's criminal division, reaffirmed that "proactive investigative tools"—including "wiretaps, body wires and physical surveillance"—have "become a staple in our white-collar investigations."