Duperval: Affirming Foreign Corrupt Practices Act Conviction and 108 month sentence

In U.S. v. Duperval, No. 12-13009 (Feb. 9, 2015), the Court affirmed convictions and a 108-month sentence on a defendant convicted of receiving bribes in exchange for favors from his Haiti telecommunications company, Teleco. The Court found no abuse of discretion in the district court’s refusal to interview jurors individually about mid-trial publicity. The Court noted that the district court took actions to ensure the jurors were not exposed to publicity. The Court recognized that it would have been “preferable” to question a specific juror individually after she submitted a note about her awareness of corruption in Haiti, but this was not an abuse of discretion because the earlier media coverage was not related to the case. The Court rejected the argument that Teleco was not an “instrumentality” for purposes of the Foreign Corrupt Practices Act, pointing out that the government granted Teleco a monopoly over telecommunication services. The Court also rejected the argument that the jury should have been instructed to consider whether Duperval was merely performing a “routine governmental function,” noting that he was administering multi-million dollar contracts, which is not “routine.” The Court rejected the argument that the government interfered with a witness when it obtained a second declaration from this witness, finding that this witness merely “clarified” his earlier declaration. Turning to sentencing, the district court rejected the challenge to the application a two-level enhancement for a substantial part of a fraudulent scheme being committed from outside the United States. The Court noted that the relevant conduct for this offense related not to the money laundering that occurred only in the United States, but to the “underlying offense” of wire fraud. The Court further rejected the challenge to the “manager” enhancement, pointing out that Duperval managed another participant, and that there were five or more participants in the scheme. The Court rejected the challenge to the “obstruction of justice” enhancement, finding that Duperval “perjured himself” when he testified at trial. Finally, the Court found that the 108-month sentence was “substantively reasonable,” finding Duperval’s comparisons to other defendants to be “inapt.”