National Italian American Bar Association NIABA News Men and women sharing a common heritage in a chosen profession

Fall 2012 Viva Las Vegas By Frank Schiro NIABA President

The NIABA Board met in Las Vegas, Nevada on June 1st and 2nd, 2012, graciously hosted by Attorney Dominic Gentile who permitted our board to meet in his law office conference room at the law firm of Gordon & Silver, 3960 Howard Hughes Parkway, Las Vegas, NV 89169, not far from Caesar’s Palace, Peter Balistreri (Milwaukee, WI); Dino Mazzone where the board members were provided (Quebec, Canada); Court Commissioner Joseph VIP accommodations thanks to our fellow Frinzi (Milwaukee); Anthony Gianfrancesco (North board member, Judge Paul Victor, and his Providence, RI) connection with Rao’s restaurant located at Caesar’s Palace.

Attorney Gentile also provided a gracious luncheon on Friday during the Board Meeting for which our board is grateful for his generous contributions and presents to our organization.

On Saturday afternoon after our morning board meeting we were invited and joined some local Italian American attorneys along with Dominic Gentile to honor a senior attorney and former mentor to attorney Gentile, attorney George E. Graziadei. NIABA presented him with a certificate of appreciation for lifetime accomplishment for which he was very grateful.

We also dined at the famous Rao’s restaurant located in Caesar’s Palace and were hosted and greeted by the owner whose family was associated with the original Rao’s in Harlem, New York still famous as a testament to fineItalian cooking.

The board meetings were productive which resulted in motions passed to renew the one year contract for our administrative assistant, Dana Robb, in Milwaukee, WI, who has been extremely helpful in the early stages of our relationship, including but not limited to producing one of the best newsletters thus far published as so expressed by our immediate past president, Anthony Gianfrancesco, from Rhode Island.

Also confirmed at the board meetings was a bylaw amendment concerning classes of membership which was passed by the board allowing newly admitted Italian American lawyers to join NIABA without dues for one year. The amendment passed by unanimous vote. This bylaw change parallels a similar provision in the American Bar Association bylaws. Therefore, it allows any Italian American law student who has been admitted to a bar to practice law to join NIABA for the first year without paying dues.

The board also learned from communications from Professor Malloy from Syracuse University Law School that Volume 19 of the NIABA Digest is in print and mailed out and that Volume 20 will be published in a timely fashion. Continued on page 2 Spring Meeting BOARD OF DIRECTORS continued from page 1

OFFICERS: At said meeting brother Ray Detorre from Weekend scheduled for 10 a.m. on Friday Rhode Island reported that he attended at the Washington Hilton. President as OSIA National Trustee but also on Frank Joseph Schiro behalf of representing NIABA the May All are encouraged to come and bring Executive Vice President 23, 2012 NELA (the National Educator’s guests. Finally, fellow board member Paul V. Sciocchetti Leadership Awards) annual function hosted brother Joseph Cannavo accepted the task Regional Vice Presidents by the Supreme Lodge of Order Sons of to reach out to his former city of residence, Italy in America wherein for the first time St. Louis, Missouri, to connect with Italian Al Affinito* NIABA has joined hands together with American lawyers there in an effort to West National OSIA in a joint scholarship award resurrect an affiliate lodge and recruit Lorraine C. Corsa in the total amount of $5000 to an Italian members for NIABA. Further, Anthony Mid Atlantic American law student. This year Nicholas Gianfrancesco is pursuing additional Joseph Frinzi Bruno of the University of Texas was the contact and follow-up with the Connecticut Mid West selected recipient. Italian American Bar Association which is being resurrected with the help of Attorney Sally Ann Janulevicus Additionally, Joseph Sena reported that he Frances Donnarumma, who many board New England will be setting up a CLE seminar on recent members met last October, 2011 at the Dino Mazzone developments in immigration law post NIAF event in Washington, D.C. and Canada Padilla vs. Kentucky and that such seminar were excited about the resurrection of that Daniel Stallone will be put forth as a joint venture with organization and their relationship with South NIAF for our next board meeting which NIABA. will be venued in Washington D.C. on the Treasurer dates of October 12th and 13th, 2012. It Brief mention was made to the prospect Sigismondo Renda is noted that many of our board members of possibly having a winter meeting Secretary are recommended and suggested to arrive in Atlanta, GA, depending upon the Peter Balistreri in Washington, D.C. on Thursday, October facilitation of such an event by a delegate Historian 11, 2012 so as to be present timely for to our board, Thomas Mazziotti, who hails P. Charles DiLorenzo the CLE presentation currently scheduled from the Atlanta, GA area. as the kick-off event for the NIAF Gala DIRECTORS: Louis R. Aidala (NY) Philip R. Boncore (MA)* Members Welcome! Cirino M. Bruno (NY)* Fall Meeting Includes Panel Discussion, Wine Tasting Mark Cameli (WI) The NIABA Board of Directors will meet on October 12 & 13 in Washington, DC, in Mario Capano (MA) conjunction with the National Italian American Foundation’s (NIAF) Anniversary Gala. Hon. Anthony J. Cutrona (NY)* Raymond Dettore, Jr. (RI) As part of the Gala event, NIABA is also co-sponsoring a panel discussion titled Recent Developments in U.S. Immigration Law. The program will be held from 10-11:30 a.m. Hon. Joseph N. Giamboi (NY)* on Friday, October 12. Panelists will include NIABA Board member Attorney Joseph Anthony J. Gianfrancesco (RI)* Sena – who specializes in immigration law throughout the country, Mr. John Morton – Prof. Robin Paul Malloy (NY) U.S. Director of the Department of Immigration and Customs Enforcement, and Attorney Carol Ann Martinelli (MI) Francesco Isgro of the U.S. Immigration Litigation Office. The discussion is free, and open to the public. Raymond A. Pacia (RI)* Prof. Peter A. Previte (OH) Also on Friday, NIABA will host a Tasting of Wines and Delacies of Calabria. From 4-6 Michael C. Rainone (PA)* p.m., you are invited to explore the grapes and sample the foods that are native to this John C. Sciaccotta (IL) region, located at the “toe” of the Italian Peninsula. Joseph Sena (NY) For more information on the NIAF Gala, visit the website at www.niaf.org. If you have question about the NIABA events, contact President Frank Schiro at 414-271-7776 or *Past president [email protected].

NIABA News • Fall 2012 • page 2

Affiliate Highlights

Rhode Island Chapter (Justinian Law Society) Citizens United v. Federal consider a Medicare Set Aside Election Commission. Af- Agreement when settling ter the entrée was prepared, civil claims. Attorney Michael Judge Fortunato spoke on ac- Civilotto was the speaker. cess to the press, the right of assembly and what is protect- On June 22nd, the Justinian ed speech. After Justice Wil- Law Society again hosted liams prepared his blackberry the Charles Pisaturo bocce wine torte, the guests learned tournament. At that time, the about the ethical obliga- annual awards to the 2011 and tions owed to clients who are 2012 scholarship recipients groups, and a lawyers’ duty for law students were present- under the 5th amendment. ed and winners were invited to play a round of bocce with In late spring, the Justinians our members. hosted another CLE on the obligations of attorneys to Denise Lombardo Myers

* * *

Denise Lombardo Myers, Pres., RI Superior Court Judge Fortunato, RI Supreme Court Judge Robinson, Chef Iannuccilli and Connecticut Italian American Bar Association Chief Judge (ret.) Frank Williams.

The Rhode Island chapter sistance on matters related planned a variety of social to the Department of Labor. and education events for Within the capacity crowd 2011-2012, starting with our were distinguished judges, installation of officers in Oc- Justinian members and the tober of 2011, at which time entire legal department at the the Justinian Law Society Rhode Island Department. In also awarded a public service addition, two framed prints of award to Attorney Joyce Fara- the mosaic of Justinian were one. generously donated and raf- fled off to guests by NIABA The annual Christmas Party past president Ray Pacia. The Connecticul Italian American Bar Association was recently reached capacity crowd restarted after a long lapse of activity. CIABA President Francis to honor its past president On March 12th at the Italo- D’Annarummo, Anthony Gianfranceso, Roy DeBarbieri and Judge and the 2011 Distinguished American Grill in North Richard Marano attended the inaugural meeting in May. Service Award recipient: At- Providence, members gath- torney Valentino Lombardi. ered for a special program After a delicious 5-course combining legal education meal at the Italo American credits and a cooking demon- Club, guests heard from stration of 3 courses by Chef We Need Your Email Address Magistrate Judge Montalbano Iannuccilli and Chief Justice If you received a hard copy of this newsletter in the mail, it about the years of volunteer Williams. In addition to cop- may mean we do not have your current email address. Please service made to numerous or- ies of Supreme Court cases, help us, help yourself, and help the environment by providing ganizations by Lombardi, his guests also received copies of that contact information to NIABA Administrator Dana Robb at friend. As Judge Montalbano the recipes used by the chefs. [email protected]. and Chief Judge Williams The program was related to (ret.) presented the award, the 2012 Presidential race: Not only will we save the cost of printing and mailing, as well guests learned of Lombardi’s Justice Robinson spoke on the as the environmental resources, you’ll also get your newsletter dedicated service to all Rhode 1st Amendment and privacy sooner and be able to take better advantage of the information Islanders who sought his as- rights and the 2010 decision: and resources we offer in each issue.

NIABA News • Fall 2012 • page 4 Jury’s Out Welcome New NIABA Members Welcome to the following Ashton L. DiDonato Frank Passafiume members, who’ve joined Dublin OH Legal Aid Bureau of Buffalo, NIABA in recent months. 614-440-1797 Inc. [email protected] Buffalo NY Frank J. Bennardo 716-853-9555 x669 Bennardo & Bennardo Daniel P. Elliott [email protected] Boca Raton FL Murtha Cullina LLP 561-368-4988 Hartford CT Glorie Romaniello [email protected] 860-240-6052 Minnella, Tramuta and [email protected] Edwards, LLC Robert A. Bianchi Middlebury CT Morris County Prosecutors Phyllis Ricciardi Erikson 203-573-1411 Office Phyllis Erikson, Esq. [email protected] Morristown NJ Nassau NY 973-285-6250 518-766-0613 Angelo Sarno [email protected] [email protected] Snyder & Sarno LLC By Joseph F DeFelice Roseland NJ Aaron Bill Stephen Frost 973-274-5200 Alas said the foreman Washington DC Clark NJ [email protected] It’s time to decide, 440-567-5997 732-986-4048 That lawyer was sharp [email protected] [email protected] Barbara Bevando Sobal And very wise Law Office of Barbara Simon J. Brighenti, Jr. Tim Heise Bevando Sobal Oh yes pronounced another O’Connell, Attmore & Morris, Grand Forks ND New York NY So intuitive was he, LLC 915-867-4094 212-980-4002 And kind can’t you see? West Springfield MA [email protected] [email protected] His cause seemed so just 413-747-1773 x13 that is what I surely see [email protected] Lucianna Locorotondo Ralph Tambasco Bronx Supreme Court Tambasco & Associates, PC A third juror spoke up Louis C. Cairo Bronx NY Indianapolis, IN And she declared, GWC 718-618-1440 317-686-0000 Oh yes, I saw sincerity Chicago IL [email protected] [email protected] In that lawyer’s eyes, 312-464-1230 A man you can trust [email protected] Clara DeMatteis Mager Joseph Tramuta So clear to me Butzel Long Minnella, Tramuta and Paula M. Castaldo Detroit MI Edwards, LLC Alas said another McElroy, Deutsch, Mulvaney 313-225-7077 Middlebury CT I am confused, & Carpenter, LLP [email protected] 203-573-1411 Which way should we turn? Morristown NJ [email protected] Should the vote be yes? 973-425-8731 Louis Paul Marcanti Or should it be no? [email protected] New Orleans LA Elliott Tubbs, III 504-861-5550 Naples FL Outside paced the lawyer Hon. Michael J. Colona [email protected] 716-228-2824 In the empty hallway so dim, The Stokely Group, LLC [email protected] Walking up and down St. Louis MO Kristin A. Occhetti And round and around 314-531-1333 Quarles & Brady LLP Stephen G. Vicari, II [email protected] Milwaukee WI Charlestown SC Inside to the courtroom 414-277-3075 [email protected] The lawyer paced, Christine De Santis [email protected] As he looked to the clerk with Higgs, Fletcher & Mack LLP Joseph A. Vitell a worried face, San Diego CA John M. Parese Vitell & Spitz Law Has there been a question? 619-595-4220 Buckley & Wynne Chicago IL Did they send a note? [email protected] New Haven CT 312-726-7052 203-776-2278 [email protected] Oh no said the clerk David J. DeFrancesco [email protected] The jury is torn, Mathews, Dinsdale & Clark Who knows which way LLP This jury will turn Toronto ON 416-869-8544 Joseph F DeFelice is an [email protected] attorney in Kew Gardens, NY, handling criminal and immigration matters and appeals.

NIABA News • Fall 2012 • page 5 National Italian American Bar Association - Application for Membership Duplication and redistribution of this document is encouraged.

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NIABA News • Fall 2012 • page 6 Foreign Corrupt Practices Act is ‘sword of Damocles,’ critic says By Michael P.Tremoglie defense will be lacking if a Breuer allegedly deceived ups averting their eyes and proper discovery of evidence Congress about his knowledge not asking questions because Violations of the Foreign cannot be obtained.” of the “Fast and Furious” gun they do not want to hear the Corrupt Practices Act have walking program. answers. been expanded to include Assistant Attorney General not only what actual bribes Lanny A. Breuer said late “This was a shocking “The corporation does not are known to be paid but last year that he is open to revelation...” Grassley said. have necessary intent if the what bribes a business owner amending corruption laws, “The Justice Department had members of control group or executive “should have but will not agree to what publicly denied to Congress - the high level corporate known” were being made. he perceives as attempts to that ATF would ever walk officers - do not know what is weaken the Foreign Corrupt guns. Yet, the head of the going on because a low-level This has some observers Practices Act. Criminal Division, Mr. official who paid the bribe keeping watch over what Breuer, knew otherwise and kept the crucial information cases the Justice Department Speaking at the 26th National said nothing.” from the higher-ups. prosecutes. Conference on the Ronald D. Rotunda, a law “The Government has to show “This law is Foreign professor at Chapman a corrupt intent to commit a a sword of Corrupt University Law School, crime in order to prosecute Damocles Practices Orange, Calif., said the bribery.” hanging over Act original concern with FCPA the head (FCPA) in had to do with protecting Rotunda provided an of anyone Washington, investors. example of willful blindness, doing Breuer said, “Suppose a company that business in “I am aware “Companies could be extorted had no business from South a foreign that there by the foreign officials. The Parador now finds it has a country,” have been a companies are victims not lot of government contracts said Bill number of criminals,” he said. after they hire an individual Frezza, a efforts made who has a lot of contacts with fellow at the Bill Frezza this year “If I am an investor in a relatives of the local dictator. Competitive to amend company that has all these Enterprise Institute. “You the FCPA, by the Chamber foreign contracts, I think it “Suppose this individual are subject to political and of Commerce and others. We is because of savvy business asks for reimbursements for capricious enforcement in the Justice Department but actually, it is because of expenses but does not provide attempts to govern the are always open - and I bribery. The purpose of the any receipts. If the high-level behavior of people and personally am - to working law is to prevent misleading company executives say they governments in foreign with Congress on ways to investors. There is logic to do not want to ask because countries.” improve our criminal laws. that. Investors want to know they do not want to know if an American company is the answer, that is willful Frezza observed that normally “That said, I want to be clear obtaining business because blindness.” when doing business in a about one thing with respect it has a better product. That foreign country a company to these proposals: we have is not necessarily true if it is But this is not what has to have an in-country no intention whatsoever of obtaining business by bribing necessarily happens when the salesman. This salesperson supporting reforms whose aim the son-in-law of the local government prosecutes using probably earns a commission. is to weaken the FCPA and dictator.” a more lenient, “should have make it a less effective tool known” standard, Rotunda “What is the standard for for fighting foreign bribery.” Regarding the “should have said. what you should have known” FCPA prosecutions, known?” Frezza asked. Breuer is no stranger to Rotunda said, “Bribery is a Reprinted with permission “How do you do a proper controversy. In December criminal violation and that from legalnewsline.com. investigation when the U.S 2011, Sen. Chuck Grassley requires intent. What we do cannot compel discovery (R.-Iowa) called for Breuer’s not want is willful blindness from foreigner countries? Any resignation, outraged because - the corporation’s higher

NIABA News • Fall 2012 • page 7 The Fighting Judge Michael Musmanno

By Karen Ferrick-Roman

During his colorful and sig- nificant life, Michael Angelo Musmanno was a force to be reckoned with as a lawyer, legislator, judge and author. The first Italian American to serve on the Pennsylvania State Supreme Court, he also served on three Nuremberg tribunals; volunteered to defend Sacco and Vanzetti; served two terms in the Penn- sylvania legislature (cam- paigning through cardboard stand-ins while he served overseas); and was a tireless defender of democracy and his Italian heritage.

As Chief Judge, Musmanno (R) presided over three Nuremberg trials after WW II. The Early Years Musmanno lived life to the fullest between his birth in earning his law degree from wounds, he received the Navy who set the extermination of 1897 and his death in 1968, Georgetown University in Expert Pistol Shot Medal and Jews in motion. In 1946, he with much of it documented Washington, D.C., he became others, including the Italian led the U.S. Board of Forcible by books, papers and photos a trial lawyer, but shuttered Bronze Cross for Military Repatriation in Austria, sav- in the archives at Duquesne his practice after reading of Valor. During the 1943 Allied ing an estimated 5,000 people University in Pittsburgh. the circus that the Sacco and invasion of Europe, Mus- from Siberian exile or execu- Governed by an over-the-top Vanzetti trial had become in manno was chosen as an aide tion by opposing the repa- work ethic, his moral compass Massachusetts. to Gen. Mark Clark, the Al- triation of those who did not was formed by his immigrant lied commander in Italy, and want to return to Communist parents and the mistreatment For nearly seven years, as a served for six months as the countries. of workers he witnessed as a volunteer with the defense, Allied governor of Sorrento, child. he struggled to keep the two south of Naples, where port In 1947, he was appointed philosopher-immigrants alive; records indicate his family by President Truman as a One of nine children, he grew convinced they were being had lived before emigrating. Nuremberg trial judge, and up in hardscrabble Stowe tried for their radical politics presided over the year-long Township outside Pittsburgh, instead of murder. Mus- Later, as part of a Navy team Einsatzgruppen case, which raised in a house built by his manno’s faith in justice was charged with determining that the Associated Press called father. His mother died in an shaken when he was unable Hitler was really dead, Mus- “the biggest murder trial in oil lamp explosion at home to save them from the electric manno interviewed 200-plus history.” All 24 Nazi officers when he was eight and he chair. Disheartened, he left Nazis, from generals to bar- charged with slaying one mil- later joined his father in the to study criminology at the bers, including the parents of lion Polish Christians, Jews coal mines. University of Rome. His fa- Hitler’s mistress, Eva Braun. and other civilians were found miliarity with the city became In the 1950s, he turned these guilty. He also was a mem- Eventually, he received an critical in World War II. experiences into a book that ber of the court on two later education, earning seven de- became the movie, The Last Nuremberg trials. His deci- grees, starting with the Ameri- Ten Days. sions have become incorpo- can University and Washing- Wartime Service rated into international law. ton College. He enlisted to Musmanno enlisted in the He also investigated the Nazi fight in World War I, but the Navy during the war, rising death camps, an experience Continued on page 9 Armistice was signed the day to the rank of rear admiral. that would inform his role in he was to sail. In 1922, after Twice decorated for his the trial of Adolf Eichmann,

NIABA News • Fall 2012 • page 8 The Fighting Judge Continued from page 8

Home Again previous interviews with Luft- in the 6th century and Garib- be used enthusiastically, en- Returning stateside, as a waffe leader Hermann Goer- aldean forces that freed south- ergetically and completely Pennsylvania legislator, his ing, Nazi propagandist Joseph ern and central Italy. for America; and in that man- efforts disbanded the private Goebbels and others said ner, they become the best of Coal and Iron Police, hired by Eichmann determined who “I believe that those of Italian Americans. the mining companies, whose should die and when. “Not to descent have a rich heritage brutality targeted Italian and have prosecuted (him) would and they should preserve their “After all,” he wrote, “it is Eastern European immigrants. have been to commit an un- racial characteristics, which what a man does today that He went down into the mines forgivable offense against the embrace a love and venera- counts.” himself and later wrote about sanctity of the human race,” tion of the best in art, music, a real-life incident in 1929 in he wrote in his book, The Ver- literature and science. It is This article was reprinted which a striking coal miner dicts Were Just. something to feel oneself a courtesy of ITALIAN AMERI- was beaten to death by these part of an ethnological group CA Magazine, the most widely union-busting thugs. Holly- Appointed by President Ken- which produces a Columbus, read publication in the U.S. wood turned it into the movie, nedy to the Commission on a Marconi, a Michelangelo for Italian Americans. It is Black Fury. International Rules of Judi- and a Leonardo da Vinci. But published by the Sons of Italy. cial Procedure, Musmanno while this ethnological ven- For subscription information, Before going to war, he had gave testimony in Frankfurt, eration is praiseworthy and, contact ITALIAN AMERICA risen to the bench on 1934, Germany in 1965 that helped to the extent I have indicated, MAGAZINE, 219 E Street, where he served for 36 years. to convict the men who ran even beneficial, I dislike the NE, Washington, DC 20002. In 1952, he became the first Auschwitz. thought of too much racial (Tel: 202/547-2900. Web Italian-American to serve on isolation and segmentation. www.osia.org) the Pennsylvania State Su- … all these qualities should preme Court, a post he held Viva Columbus! for 16 years until his death Musmanno was an ardent sup- in 1968. Authoring proposed porter of Columbus as the first constitutional amendments, European in America. “He led NIABA Thanks Our he also wrote 16 books, con- the Columbus Day parade all sulted for Hollywood movies, the time,” remembers Eugene Patron & Sponsor Members spoke at the first organizing Fischione, 91, who worked Sponsor and Patron members help fund NIABA’S member ben- rally of U.S. Steel Workers, in the camera department of efits, such as the annual Digest and our upcoming immigration and battled the threat of com- Pittsburgh’s Kaufmann’s store panel discussion (see page 3). If you would like to upgrade to a munism. and came to know Musmanno higher membership level, contact us at www.niaba.org. through his love of photogra- phy. Sponsors The Red Menace Angela Alioto Paul V. Nuccio In the 1950s, Musmanno’s In his chambers, the worka- Richard D. Amato Raymond A. Pacia boundless energy was riveted holic justice wore his soft Peter S. Balistreri Mark Peduto on communism. He recom- gray wool Italian paratrooper Hon. Michael J. Barrasse Vernon J. Petri mended that communists jumpsuit and was ready to Marco Cercone Nancy Sciocchetti be imprisoned and that the chat. “He was easy to talk to. Hon. Albert R. Ciullo Frank T. Strafaci Cincinnati Reds change their He didn’t pretend to be a big Joseph C. Correnti Ralph Tambasco name. He also co-authored shot,” said Fischione. C. Jerome D’Aquila Michael P. Verna the Communist Control Act Raymond Dettore, Jr. of 1954 with Lyndon Johnson Musmanno received the high- P. Charles DiLorenzo Patrons and Hubert Humphrey that est award of merit from the Phillip P. DiLucente Philip R. Boncore outlawed the Communist Italian Historical Society of William Dimitri Mark A. Cameli Party in the U.S. America in 1966. Two years Antonio Faga Hon. Anthony J. Cutrona later, he died in his sleep on James Louis Farina Hon. Joseph N. Giamboi In 1961, he was invited to Columbus Day and is buried Hon. Joseph D. Frinzi Anthony J. Gianfrancesco Israel as a prosecution witness in Arlington Cemetery. In- Joseph M. Gagliardo Michael O. Pansini in the Eichmann trial. Mus- tensely proud of his Italian Mario F. Gallucci Thomas Panza manno overrode his attorney’s heritage, Musmanno traced Sallyann Janulevicus Prof. Peter Previte advice, testifying that his his ancestry to the Lombards Jonathan B. Kim Frank J. Schiro who invaded northern Italy Prof. Robin Paul Malloy Paul V. Sciocchetti

NIABA News • Fall 2012 • page 9 11th Circuit Given Question of FCPA ‘Instrumentality’ Def inition

A case before the U.S. Court chael Koehler of Southern the DOJ alleging that General or instrumentality” in the defi- of Appeals for the 11th Cir- Illinois University School of Motors Co. or American In- nition of “foreign official” is cuit could decide the meaning Law, who blogs at FCPA Pro- ternational Group Inc. is an unconstitutionally vague. of “foreign official” and “in- fessor. It will be the first strumentality” as two Florida time an appellate court Regarding Koehler’s declara- men seek to overturn their will rule on the mean- tion, the DOJ said, “Defen- 2011 convictions for bribing ing of the terms foreign dants rely on a 144-page dec- Haitian officials in violation official and instrumen- laration by Professor Michael of the Federal Corrupt Prac- tality. J. Koehler that was filed on tices Act (FCPA). behalf of the defendants in The issue is whether the Carson ....Although defen- But standing in the way of meaning of the terms - dants suggest that this Court appellants Joel Esquenazi and which are contained but may take judicial notice of the Carlos Rodriguez is the U.S. not defined in the FCPA declaration because it relates Justice Department which - should be defined leg- to legislative history, the dec- argues in an Aug. 21 response islatively or whether the laration selectively reviews brief that the men are wrong definitions of the DOJ’s the legislative history and in their narrow interpretation enforcement and case draws inferences in support of of the terms. law continue to be used. Professor Michael Koehler a defense motion to dismiss the indictment. For their roles in authoriz- Koehler wrote a dec- ing bribes to officials at Haiti laration in support of the ‘instrumentality’ of the U.S. “As such, it is not necessarily Teleco (land line telephone motion by Esquenzai and Ro- government (given its owner- the statement of a disinterest- service), Esquenazi received driguez to dismiss counts one ship interests in these compa- ed expert, it was not reviewed a 15-year sentence and Ro- through 10 of the indictment. nies) and that all GM and AIG as a scholarly article, and it driguez a seven-year sentence employees are therefore U.S. was never subject to impeach- after being convicted of one He said that “The FCPA ‘officials.”’ ment in the case below. Even count of conspiracy to violate defines ‘foreign official,’ as the district court in Carson the FCPA and wire fraud; ‘any officer or employee of The DOJ’s response noted did not rely on the declaration seven substantive counts of a foreign government or any that “Defendants first raised because it concluded that ‘re- FCPA violations; one count of department, agency, or in- their ‘instrumentality’ claim sort to the legislative history money laundering conspiracy; strumentality thereof, or of a in a pre-trial motion to dis- of the FCPA [was] unneces- and 12 counts of money laun- public international organiza- miss the indictment, and the sary.’ dering. tion, or any person acting in district court denied it...The an official capacity for or on court concluded that ‘the “If the Court is inclined to According to the DOJ, the behalf of any such govern- plain language of [the FCPA] consider the Koehler affidavit, defendants participated in a ment or department, agency, and the plain meaning of the government asks the Court scheme to commit foreign or instrumentality, or for or on [instrumentality] show that to similarly consider the dec- bribery and money laundering behalf of any such public in- as the facts are alleged in the laration of FBI Special Agent from November 2001 through ternational organization.’” indictment Haiti Teleco could Brian Smith, also filed in Car- March 2005, during which be an instrumentality of the son, that discusses references time the telecommunications But Koehler noted in his dec- Haitian government’ and that to SOEs in the legislative company paid more than laration that the FCPA does the indictment ‘sufficiently history.” $890,000 to shell companies not define the terms “depart- alleged that Antoine and Dup- to be used for bribes to Teleco ment,” “agency,” or “instru- erval (Haitian officials) were All of this reveals some of officials. Esquenazi and Ro- mentality.” Indeed, he says foreign officials by alleging the problems involved in the driguez authorized these bribe the definition has been left to that these individuals were enforcement of the FCPA. payments to successive direc- the Justice Department, which directors in the state-owned For its part, the DOJ, in its tors of international relations has included employees of Haiti Teleco.’” response brief, claims the ap- at Teleco. government owned entities. pellants are defining the term The DOJ also rejected de- public official too narrowly. Their appeal has been termed This he says is “the functional fendants’ argument that the “historic” by Professor Mi- and substantive equivalent of phrase, ‘department, agency, Continued on page 11

NIABA News • Fall 2012 • page 10 Instrumentality Continued from page 10 Jay Shapiro, an attorney for that American businesses are playing field for companies I take issue with current in- the New York office of White reluctant to enter foreign mar- abroad. He does not think the terpretations of the act by the and Williams, a former pros- kets because of the FCPA. law is primarily enforced for DOJ. I have called on Con- ecutor with the Bronx and foreign policy reasons. He gress to amend the act.” Brooklyn District Attorney’s “To be precise, the statute said that other countries are office who is currently in- does define the term foreign developing statutes and there He observed that companies volved in commercial litiga- official, it does not define the is starting to be a conversion are confused and find the tion, believes the DOJ will term instrumentality,” she to a global corruption stan- current interpretations of the prevail in the appeal case. said. “The ambiguity (that) dard. He too thinks the FCPA FCPA by the government dis- tends to give rise to litigation terms need clarification. concerting. He made it very “The problem is there is no is with regard to state enter- clear though that he believes definition of instrumentality,” prises - as to whether they are “Without commenting on any that American businesses Shapiro said. “The govern- an instrumentality. That has specific case, defining the should not “take our foreign ment does a good job ad- been historically the case.” term instrumentality and the markets as we find them.” But dressing the controversy in its interpretation of the term for- the government should make reply to the Esquenazi appeal. Low is a member of the eign official are valid issues,” compliance easy. But this is such a new area. American Society of Interna- Dunlop said. tional Law, and that group’s “I have known companies “Also, clarity is needed in former vice president. “The Justice Department that leave a market because terms of how the statute fits. definition has been expanded of the problems with enforce- It currently fits the govern- “I do not think there is any to mean even where there is ment,” Dunlop said. “I do not mental practices of the United empirical evidence that Amer- less than 25 percent of gov- subscribe to the view that we States. It does not necessar- ican businesses are reluctant ernment ownership the em- should take our foreign mar- ily fit the structure of foreign to go into developing coun- ployees are foreign officials. kets as we find them. I think it governments and their prac- tries,” she said. “I do a lot of This makes anybody who is is beneficial overall for Amer- tices. If you go to a foreign work for American businesses an employee of the entity a ican companies to operate in a country as I did recently to in the extractive industries. foreign official including the way to promote transparency. talk about these issues you They know they have to be janitor. You do not have to be But we have to make it easy understand this.” more cautious.” in management. for companies to do this. I think the DOJ should set a Shapiro also said that compa- Historically, she noted, there “While I think it is appropri- standard for compliance by nies that do business abroad was the concern that the U.S. ate for the American govern- issuing some guidance.” already know about under- was acting unilaterally and ment not wanting to foster standing and coping with that the FCPA was imposing corruption and to take steps Reprinted with permission foreign laws and foreign busi- an undue burden to businesses to eliminate and prosecute it, from legalnewsline.com. ness practices. operating overseas. She ob- served that there are still con- He said the idea is to help cerns that the FCPA sweeps foreign countries create the too broadly. This debate has NIABA Offers Free One-Year conditions where bribery been rekindled because of the Membership for New Lawyers would be less of a factor. But, increased enforcement in re- he said, we also need to more cent years. At the NIABA Board of Director’s spring meeting, a bylaw clearly define the terms of the amendment was enacted to make membership more accessible to FCPA and how the statute is James C. Dunlop, an attorney new attorneys. enforced. with Jones Day in Chicago, represents companies and in- Italian American lawyers are invited to join NIABA without dues American law needs to be dividuals in criminal enforce- for one year after their admission to the bar. This bylaw change able to define it more strictly, ment matters. He also coun- parallels a similar provision in the American Bar Association he said. sels and conducts internal bylaws. investigations for companies Lucinda A. Low, a partner concerned about foreign cor- Since its founding in 1983, NIABA has worked to advance the with the Washington D.C. law rupt practices. interests of the Italian-American legal community and to improve firm of Steptoe and Johnson the administration of justice. Including the voices of our newest and the head of its FCPA He said that the FCPA was attorneys serves to further this mission with diversity and energy. practice, does not believe designed to create a level

NIABA News • Fall 2012 • page 11 NIABA Members Visit at May meeting in Las Vegas

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