FCPA: Obstruction of Justice

From a FCPA compliance perspective, recent developments in an investigation relating to mining concessions in the Republic of Guinea reaffirm the need for extra caution for anyone counseling an entity subject to an investigation or prospective investigation.  As is evident from the complaint filed in conjunction with the arrest of a French man, repeated efforts to destroy critical documents were alleged.

According to the criminal complaint and subsequent superseding indictment, the French man allegedly agreed to pay substantial sums of money to induce a witness to the bribery scheme to turn over documents to him for destruction. The complaint also alleged that this same individual sought to induce the witness to sign an affidavit containing false statements regarding matters under investigation by the grand jury.

In terms of providing guidance to an entity, the utmost care must be exercised to ensure that incriminating records are not destroyed.  As is so often the case in many criminal investigations, what may be perceived as a cover up may subject an individual or entity to greater exposure than the actual underlying allegation of a criminal violation.  Indeed, the destruction of relevant records is subject to a term of imprisonment of 20 years.

Moreover, the preparation of affidavits or other submissions to mislead an investigation or prospective investigation may constitute obstruction of justice. Once again, attempts to shade or persuade investigators as to what may have occurred can have the prospect of being interpreted as a form of obstruction of justice. As a result, special care also needs to be exercised in ensuring that whatever is prepared is accurate.

Of added import is the need to understand that there is no single bright-line test in terms of timing as to when the destruction of a record or communicating with a witness may be misinterpreted as some form of obstruction of justice.  A range of factors comes into consideration as to when such a step may be problematic.  Accordingly, in these situations, an ongoing need exists to exercise special care in destroying records or in contacting witnesses relative to an existing or possible future investigation.

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