BOX 2.4
Prosecution of Accounting, Records, and Internal Control Provisions in the United Kingdom and the United States
In United States v. Siemens,a authorities discovered that bribes were paid to public officials to secure government contracts. Bribes were accounted for as payments to consultants, who subsequently channeled them to the public officials. Siemens and its subsidiaries in Argentina, Bangladesh, and República Bolivariana de Venezuela pleaded guilty to charges of conspiracy and violations of books and records and internal controls provisions in a plea agreement that resulted in a $450 million fine. In a case involving BAE Systems, the company bribed several public officials to secure arms sales in different jurisdictions. Eventually, BAE Systems reached a settlement with the United Kingdom and the United States.b In the United States, the company pleaded guilty to charges of conspiring to make false statements in connection with regulatory filings, and it agreed to pay a $400 million fine and make additional commitments concerning ongoing compliance. In the United Kingdom, the company pleaded guilty to failure to keep reasonably accurate accounting records, and agreed to pay a £30 million (approximately $47 million) financial order. a. U.S. Department of Justice. v. Siemens Aktiengesellshaft, Siemens S.A. (Argentina), Siemens Bangladesh Ltd., Siemens S.A. (Venezuela), sentencing memorandum Dec. 12, 2008, http://www.siemens.com/press/pool/de/events/2008-12-PK/DOJ2.pdf. See also Title 18, United States Code, sec. 371; and Title 15, United States Code, sec. 78(b)(2)(B), 78m(b)(5), and 78ff(a). b. “BAE Systems plc,” news release, February 5, 2010, http://www.sfo.gov.uk/press-room/latest-press-releases/press-releases2010/bae-systems-plc.aspx. See also U.S. v. BAE Systems, sentencing memorandum February 22, 2010, No. 1:10-cr-00035 (D.D.C. 2010) (U.S.), http://www.justice.gov/criminal/pr/documents/03-01-10%20bae-sentencing-memo.pdf.
of all elements of the predicate offense to obtain a conviction.55 Box 2.4 offers examples from the United Kingdom and the United States. Practitioners should be aware that such decisions may affect proceedings in foreign jurisdictions, and they should try to coordinate with foreign counterparts. The offense of illicit enrichment has been a particularly useful tool for prosecuting corrupt officials in a number of jurisdictions, such as Argentina, Brazil, and Colombia.56 It penalizes public officials for any significant increase in their declared assets that is not reasonably corroborated by their lawful income. Effectively, it eases the burden on the prosecution, which otherwise would be required to establish the various elements of a corruption offense (that is, the occurrence of a corrupt act, derivation of a benefit, and so forth). Some jurisdictions will not recognize illicit enrichment as a criminal offense, but will have incorporated it into civil or administrative legislation.57 Where illicit 55. In Belgium, defendants involved in financial transactions may be convicted of money laundering if there is sufficient evidence that they knew that assets were of illicit origin. Prosecutors do not have to establish the elements of the predicate offense. 56. UNCAC art. 20 and Inter-American Convention against Corruption art. 9 require states parties to consider adopting provisions. 57. Some jurisdictions that have illicit enrichment as a criminal offense will use civil avenues to pursue recovery of the assets.
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Asset Recovery Handbook