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Dropped FCPA Case Holds Key Reminder for Defense Attys


In this article, authors John Davis, Ann Sultan, and Francisco Grosso* discussed the dismissal of a long-running U.S. Department of Justice (DOJ) prosecution of two defendants (Joseph Baptiste and Richard Boncy) in light of a failure by the FBI to disclose potentially exculpatory evidence to the DOJ (and thus to defense counsel as required by Brady v. Maryland). The case is one of several recent setbacks for the DOJ in its pursuit of individual Foreign Corrupt Practices Act (FCPA) enforcement actions and echoes Federal Bureau of Investigation (FBI) missteps in past FCPA-related matters — such as the 2010-2012 so-called SHOT Show cases — which resulted in forced dismissals. "The Baptiste-Boncy saga shows that, despite the many cards held by the DOJ in FCPA prosecutions, there is still value to using the full gamut of a defense attorney's tools to challenge the DOJ's positions, especially when individual defendants can face jail time," the authors said, adding that "read in the context of other recent cases involving individuals…when given the opportunity, the federal courts are likely to respond to defendants' arguments on the limitations to the DOJ's often-assertive legal interpretations of the FCPA's key provisions."

*Visiting law clerk