This article originally appeared on Professor Koehler’s FCPA Professor website (www.fcpaprofessor.com) and is reprinted with his permission.
In February, when Judge Richard Leon granted the DOJ’s motion to dismiss charges against the remaining Africa Sting defendants, an open question was what would happen to Jonathan Spiller, Haim Geri and Daniel Alvirez?
All three defendants previously plead guilty to a charge of conspiracy to violate the FCPA, a charge Judge Leon dismissed as to all defendants in the second Africa Sting trial in December 2011. In addition, Alvirez also plead guilty to non-sting, real-world conduct related to the Republic of Georgia.
The question has been answered.
Earlier this week, the DOJ moved to dismiss, with prejudice, the Africa Sting charges against Spiller, Geri and Alvirez. Moreover, the DOJ moved to dismiss, without prejudice, the Republic of Georgia charges against Alvirez.
The DOJ filing stated:
“The government has also concluded that it is in the interests of justice not to prosecute defendant Alvirez on the Georgia conspiracy count at this time, but rather to continue the investigation of that and related conduct. Following such investigation, the government will determine whether to bring criminal charges relating to the conduct.”
Asa Hutchinson, counsel for Alvirez, said:
“We applaud the government’s decision to dismiss all charges in the interest of justice. This case in its entirety was plagued with problems. The government recognized those problems and acted fairly to dismiss all remaining charges. We are hopeful and expectant that the dismissal will end this case.”
Ken Wainstein of O’Melveny & Myers, counsel for Spiller, had these words:
“We are very gratified that the Justice Department prosecutors ended their case against Mr. Spiller. This was a difficult decision for them—one of many difficult decisions faced by Mr. Spiller and the prosecutors throughout this case—and I admire them for getting to the fair and just result. Jonathan Spiller is a good man, and it is only right that he be cleared of these charges.”
“I am so glad that this painful episode in my life is now over and that the government decided to do the right thing in dismissing the charges against me. I have tried all along to do what I felt was right and all I want now is to go on with my life. Thank you to everyone that has stood by me and believed in me through this process, especially my lawyers, my friends, and my fiancée.”
“We commend the Department of Justice in making the appropriate decision to dismiss all charges against Mr. Geri. It would have been a grave injustice for Mr. Geri to be branded a felon as a result of this failed sting operation. Haim Geri is a good and decent man, who can now put this unfortunate chapter behind him and start rebuilding his life.”
During today’s hearing on the DOJ’s motion, a knowledgeable source informed that Judge Leon indicated he will grant the motion, and defense counsel and the DOJ are working to prepare an order for Judge Leon to sign dismissing the charges (as noted above) and vacating the prior guilty pleas.
When Judge Leon grants the motion, the DOJ’s record in the Africa Sting case (a case Assistant Attorney General Lanny Breuer called a “turning point”) will be 0-22. See here for my recent publication “What Percentage of DOJ FCPA Losses is Acceptable?”
To borrow from Justice Potter Stewart’s classic reasoning in Jacobellis v. Ohio, I don’t know what level of DOJ FCPA losses is acceptable and the answer may be indefinable. But I know it when I see it, and the number and magnitude of DOJ’s recent FCPA losses is unacceptable.
About the Author
Mike Koehler is an assistant professor of business law at Butler University and is an expert FCPA columnist for Corporate Compliance Insights. He is a leading expert on FCPA and other anti-corruption laws and initiatives. Professor Koehler has testified before Congress on FCPA, and he is also frequently speaks about such topics before business and academic audiences.