Foreign corrupt practices act

48 Volume 20, July–September 2014 international law update
© 2014 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) |
E C 
“”   FCPA 
       
    ; 
  ’  
 -  -
    
      
Terra Telecommunications Corp. (Terra),
a Florida company that purchased phone time
from foreign vendors and resold the minutes to
customers in the United States, contracted in
2001 with Telecommunications D’Haiti, S.A.M.
(Teleco) to buy minutes from Teleco directly.
Mr. Joel Esquenazi, Terra’s majority owner,
served as President and Chief Executive Ocer.
Mr. Carlos Rodriguez, the company’s minority
owner, served as Executive Vice President of
Operations. James Dickey served as Terras general
counsel and Antonio Perez as the company’s
e relationship of Teleco to the Haitian
government was at issue in this case and the
government presented evidence of Teleco’s ties
to Haiti. Among other witnesses testifying on
Teleco’s ownership by Haiti, an expert witness,
Luis Gary Lissade, testied regarding Teleco’s
history. As per Mr. Lissade’s testimony at Teleco’s
formation in 1968, the Haitian government gave
the company a monopoly on telecommunication
service; a signicant tax advantage and the
government appointed two members of the board
of directors while the President appointed the
Director General. In the early 1970s, the National
Bank of Haiti gained 97 percent ownership of
Teleco. From that time forward, the Haitian
President appointed all of Teleco’s board members.
When the National Bank of Haiti split into two
separate entities, one of which was the Banque
de la Republique d`Haiti (BRH), BRH retained
ownership of Teleco. In Mr. Lissade’s expert
opinion, for the years relevant to this case, Teleco
belonged “totally to the state” and “was considered
. . . a public entity.” He explained that the anti-
corruption law of 2008 cited Teleco as “public
administration” and required its agents to declare
all assets to avoid secret bribes. Ultimately, Haiti
privatized Teleco between 2009 and 2010.
At the time Terra contracted with Teleco,
Teleco’s Director General was Patrick Joseph
(appointed by then-President Jean-Bertrand
Aristide), and the Director of International
Relations was Robert Antoine.
By October 2001, Terra owed Teleco over
$400,000. At the request of Mr. Esquenazi,
Mr. Perez met with Mr. Antoine to negotiate
an amortization deal or, alternatively, to oer a
side payment. Mr. Antoine rejected the idea of
amortization but agreed to a side payment to ease
Terra’s debt. e deal, according to Mr. Perez, was
that Mr. Antoine would shave minutes from Terra’s
bills to Teleco in exchange for receiving from Terra
fty percent of what the company saved. Mr.
Antoine suggested that Terra disguise the payments
by making them to sham companies. In November
2001, Terra began funneling personal payments to
Mr. Antoine using the following subterfuge. Mr.
Dickey, on Terra’s behalf, drafted a “consulting
agreement” between Terra and a company Mr.
Antoine had suggested called J.D. Locator. J.D.
Locator, an otherwise insolvent company, was
owned by Mr. Antoine’s friend Juan Diaz. During
the course of the next several months, Messrs.
Rodriguez and Esquenazi authorized payments
to J.D. Locator via “check requests,” forms Terra
used to write checks without invoices. Mr. Diaz
retained ten percent of the funds Terra paid J.D.
Locator and disbursed the remainder, usually
either to Mr. Antoine or his business associate Mr.
Fourcand. While Mr. Antoine remained at Teleco,
Terra paid him and his associates approximately

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