The motion filed by ex-TAT Governor, Ms. Juthamas Siriwan, and her daughter, Jittisopa Siriwan, to dismiss the U.S. indictment against them has implications that go far beyond their individual case. Their motion challenges one of the increasing aggressive enforcement measures used by the U.S. Department of Justice (DOJ) to enforce the Foreign Corrupt Practices Act (FCPA). As the Siriwans' counsel observed in their opening brief: "The FCPA does not criminalize a foreign official's receipt of a bribe." Faced with this limitation, U.S. authorities have used laws other than the FCPA against foreign officials who allegedly receive bribes in an effort to go against the "demand" side of corruption.
This tactic is not without precedent and is not an anomaly. A former official of Haiti’s state-owned national telecommunications company, Robert Antoine, was charged with and pleaded guilty to a money laundering conspiracy in connection with foreign bribery in March of 2010. He was sentenced to four years imprisonment in June of that year. But now, in a case originating out of Thailand, a foreign official is directly challenging the DOJ's use of other criminal charges against foreign officials who are not otherwise subject to liability under the FCPA.
In September of 2009, the DOJ reported that:
Gerald Green and Patricia Green, Los Angeles-area film executives, were found guilty… of conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and money laundering laws of the United States, as well as substantive violations of the FCPA and U.S. money laundering laws in relation to a sophisticated bribery scheme that enabled the defendants to obtain a series of Thai government contracts, including valuable contracts to manage and operate Thailand’s yearly film festival.
In January of 2010 the DOJ unsealed an indictment it had earlier filed against the Siriwans on 28 January 2009 on money laundering related charges. In August of this year, counsel for the Siriwans moved to set aside that indictment. After extensive briefing and several continuances of the hearing date, a hearing was held on the motion to set aside the indictment on 21 November 2011.
Following that hearing, the court issued minutes setting out its "initial thoughts" about the issues raised by the motion to dismiss the indictment. The final paragraph of the court's minutes begins with the following statement: "In short, the present motion raises significantly complicated issues, which cannot be resolved without delving into the positions undertaken in the parties' briefs." The court concludes by saying it will take "some considerable time" to resolve the many issues raised by the motion. Is this a hint that this motion will lead to published opinion? The court said it "requires further briefing to rule on the motion."
Counsel for the U.S. government was provided until 2 December 2011 to file its brief, and counsel for the Siriwans were provided until 16 December 2011 to submit their brief. The matter was originally continued until 19 January 2012, but then was set to be heard on 26 January 2012. By joint stipulation, that hearing date has then continued continued again until 30 January 2012.
The minutes of the 30 January 2012 hearing state:
[the] äction is stayed until a decision is made on the Indictment. Additionally, the Government will renew their request for an extradition.
A status conference is scheduled for 30 July 2012. When more information becomes available, we post it here. In the interim, a brief high level of summary of the briefing before the 30 January 2012 hearing.
Government's Supplemental Brief
The supplemental brief filed by the U.S. government addresses the requirements for a proper indictment, but the most interesting part of the U.S. government's supplemental brief is its response to arguments it claims the Siriwans are making about Thai and international law. The U.S. government claims that the Siriwans are arguing that the indictment is improper because "Section 9 of the Thai Penal Code is an expression of Thailand's 'organic' or 'exclusive' jurisdiction over the this matter which precludes the United States, as a matter of international law, from pursuing the instant charges against the defendants." The U.S. rejects that claim, arguing, among other things, that the Siriwans have misconstrued this provision of Thai law and that, in any event, U.S. and international law does not preclude the U.S. from indicting the Siriwans even if their claim about the exclusive nature of Thai Penal Code Section 9 is correct. The U.S. government's supplemental brief states:
There is no such thing as organic or exclusive jurisdiction in international law. Further, Title 9 of Thailand's Penal code makes no such claim.
Defendants' Brief in Response to Government's Supplemental Brief
The Siriwans dispute the U.S. government's claims about the requirements for a proper indictment, arguing, among other things, that "a court may test an indictment's legal sufficiency against recognized legal principles beyond mere notice and double jeopardy." On the international law issue (which appears to have interested the court), the Siriwans argue:
U.S. law requires a narrow construction of extraterritorial application of domestic law, and that such laws be construed in a manner consistent with international law [cite omitted]
Through Section 9, Thailand has made an "an expression of exclusive jurisdiction regarding extraterritorial crimes of [its] public officials relating to official malfeasance."
We will update this news item as more information becomes available on this interesting challenge to U.S. law. For general information on Thai anti-corruption laws, click here or visit the anti-corruption laws section of the Knowledge part of our website.