The big takeaway here is the same one we saw in the Kozeny case, and again with the Siemens 8. An indictment is just the beginning. Extraditions can be big hurdles for the DOJ.
Viktor Kozeny, a Czech citizen, fought extradition from the Bahamas for ten years. He won -- all the way up to the UK Privy Council. It ruled unanimously that his alleged bribery in Azerbaijan didn't break any laws in the Bahamas.
A few years ago, the DOJ charged eight former executives and agents from Siemens with bribing government officials in Argentina. The defendants were all non-U.S. citizens living outside the United States. I believe none have appeared in the U.S., either voluntarily or through extradition. The case is dormant.
With Firtash, the DOJ was facing the same obstacle. He was another non-U.S. citizen (Ukrainian) living in a third country (Austria). From the reports, the DOJ's attempt to extradite him really fell flat.
Make the government's case for us.
Why are we, the taxpayers, funding these trials with such a low success rate? Do we not have enough of our own corruption here in the homeland?
Hold on there.
The DOJ's success rate in FCPA prosecutions of public companies is 100% (whether a perfect conviction rate for any crime is a good or bad thing is another discussion).
The conviction rate for individuals charged in FCPA cases is above 90% if you throw out the Africa sting fiasco.
And there have been a lot of successful extraditions -- from the UK and Germany. They don't make the news.
A few high-profile defeats don't prove the system is broken. Instead they show the system is healthy. That defendants are able to exercise their rights and sometimes win.
Why fight international graft? No man is an island.
Seriously, we all depend for our safety and security on governments everywhere being able to function well enough to fight terrorism, gun and drug running, human trafficking, counterfeiting, and so on. Corrupt regimes can't do that.
Graft produces human misery. It's a direct cause of poverty, public health crises, and environmental degradation. Should we just watch it happen? Of course not.
We also have a direct economic interest in overseas graft. American companies and workers depend on a level global playing field where they can sell their goods and services.
I could go on but you get the idea.
Fair enough. I have a few observations of my own, but, as an expert, what strikes you as out of the ordinary about the Firtash trial? Are FCPA cases usually this politically charged?
The backdrop of the Firtash indictment was the meltdown of U.S.- Russia relations because of Crimea. Whether the DOJ's timing was intentional or serendipitous, I don't know. But either way, the political drama was huge. Eventually it overwhelmed the extradition phase of the case.
The case was an outlier. In most FCPA prosecutions, there's no political
element at all. There's alleged criminal conduct, and that's it. In
fact, I can't think of another example of a highly political FCPA case.
(Maybe you could argue that the DOJ's BAE Systems prosecution had some political shades to it, originating back in the UK and its relationship with Saudi Arabia.)
Back to Firtash. He was a flashy pro-Russia Ukrainian oligarch. His lawyers convinced the judge in Vienna that the U.S. wanted to extradite him mainly for political reasons -- as a strike against Russia and the pro-Russia separatists in Crimea.
Showing a client's victimhood is always the goal of criminal defense lawyers. It worked for Firtash. His lawyers in Austria cast him as a political victim of the U.S. government.
Looking past the politics, the DOJ's Firtash indictment alleged real criminal conduct. But It was essentially a complicated RICO case with a lot of moving parts, and in retrospect not a good foundation for an extradition hearing in Vienna, of all places.
The DOJ should appeal, if only to set the record straight about the phantom witness allegations the judge made. And with the lessons learned from the first hearing, who knows? Maybe the DOJ can turn the extradition around.
About those phantom witnesses -- there are probably some confidential informants, maybe even cooperating co-defendants, who the feds can't publicly identify until Firtash is in U.S. custody. The DOJ may need to figure out a way to disclose their identities in camera to an Austrian judge, to give more credibility to the underlying indictment.