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Sentencing of Individuals in FCPA Cases

By Gary Stein

As part of their stepped-up enforcement of the Foreign Corrupt Practices Act (FCPA) in recent years, Justice Department officials have emphasized
the importance of prosecuting ' and sending to prison ' individual executives who violate the statute. Calling “aggressive prosecution of individuals” a “cornerstone of our FCPA enforcement policy” in a speech last year, Assistant Attorney General Lanny Breuer warned that “the prospect of significant prison sentences for individuals” should “make clear to every corporate executive” that they will be held “personally accountable for FCPA violations.”

The DOJ exercises virtually unlimited discretion in deciding who gets charged in FCPA cases and, for all practical purposes, in deciding the amount of the financial penalty imposed against corporate violators. But sentencing of individual defendants, particularly after United States v. Booker, 543 U.S. 220 (2005), is ultimately a matter of judicial, not prosecutorial, discretion. And it has become apparent that there is a wide and growing rift between the views of the DOJ and the courts as to the appropriate sentences for individual violators in FCPA cases.

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