Tag: FBI

FBI and FCPA

In addition to learning about the FBI’s compliance program, understanding white collar criminals, and a visit to the FBI Academy, the FBI Corporate Compliance Officer Outreach Event included a very frank discussion of the Foreign Corrupt Practices Act. The program brought in attorneys from the Department of Justice to discuss their approach to bringing FCPA cases.

Anyone who has read the FCPA Opinion releases may be surprised to hear the practical approach spoken by the presenters. The opinion releases paint a vary minimal threshold for ordinary business entertainment expenses to not be outside the boundaries of a bribe.

The presenters started off with four types of payments that are not bribes:

  1. Facilitation payments (still suspect)
  2. reasonable and bona fide gifts and entertainment
  3. duress payments, when there is a threat of physical harm
  4. Extortion

They pointed out that the key to a bribery case is the corrupt intent. They painted a picture that the DOJ has a hard time finding proof of corrupt intent and an even harder time convincing a jury that there was corrupt intent. In my view, that leaves a lot of grey areas between the de minimis standard in the opinion releases and the much larger payments in prosecuted cases.

They pointed to the Morgan Stanley case as one where the firm’s compliance program stopped the DOJ from seeking further prosecution. As to the compliance defense and credits under the sentencing guidelines for effective compliance programs, the speakers admitted that you rarely see those in cases. However, that is because the DOJ rarely brings cases when they see an effective compliance program.

The last piece of news was to be on the lookout for some substantial guidance on the FCPA. The guidance is not coming out  as a response to the Chamber of Commerce or other critics of the FCPA. It’s a response to the OECD’s review of the US corruption laws in 2010. The Phase III report recommended consolidation and summarization of available information on the application of the FCPA. This guidance will be that consolidation. To meet the deadline of the OECD report, we should expect the guidance to come out in October.

Materials:

A Visit to the FBI Academy

As part of my visit to the FBI Headquarters for the FBI Corporate Compliance Officer Outreach Event, we took a trip to Quantico to visit the FBI Academy. The Academy shares space with the Marine Corps base and is therefore behind heavy security. Even with all of that security, there are buildings at the Academy under even more security. Needless to say, we did not get to visit those buildings.

This part of the trip was more about FBI programs, than about compliance. The exception was a viewing of the FBI’s ethics video. This was an impressive production with field agents placing the ethical standards in the context of actual case issues. Change the discussion from law enforcement and the ethics video would be an example of a great corporate ethics video, putting a code of conduct in the context of real situations.

The FBI Academy facilities have an overall 1970s feel to them. This makes sense, since the facilities were built in the 1970s.  We didn’t get change to enter Hogan’s Alley, a mock city used for tactical training. However, we did hear lots of gun fire. The first barrage sounded like a dozen or so trainees opening fire at once. A few minutes later an enormous barrage echoed across the compound, sounding like the ill-fated San Diego fireworks. Clearly, the trainees had switched to automatic weapons.

Materials:

FBI and Understanding White Collar Criminals

As part of my visit to the FBI Headquarters for the FBI Corporate Compliance Officer Outreach Event, Supervisory Special Agent Susan Kossler discussed her work in the Behavior Analysis division of the FBI.  The Silence of the Lambs and  “Criminal Minds” have glamorized the work of FBI profilers, making them seem like real life versions of Sherlock Holmes who always get their man.

Of course, reality is much more complex. And according to SSA Kossler, much less glamorous.

In applying the analysis to financial crimes, the research unfortunately shows that many of the traits that are indicative of a white collar criminal are also the traits most companies seek in their top executives.

The other complexity is the division in criminal behavior between the leaders and the followers. Take the case of Bernie Madoff. Clearly, he was the leader of the crime. Others convicted, under indictment, or under investigation were mostly followers. They believed in their leader and followed him into the dark cave of blatant fraud. Their motivations and behavioral traits are likely much different than those of Mr. Madoff.

SSA Kossler provided an extensive bibliography if you are interested in further study.

Sources:

Bibliography: (Bold indicates the article is available online.)

The FBI’s Compliance Program

As I mentioned last week, I had a chance to meet with the Federal Bureau of Investigation and learn about their compliance program and some aspects of other FBI programs.

Patrick W. Kelley gave a very thoughtful overview of the FBI’s compliance program. Like many compliance programs, it was born from a crisis. The FBI was accused of abusing the use of National Security Letters. An NSL is a demand letter, which differs from a subpoena.  An internal FBI audit found that they violated the NSL rules more than 1000 times in an audit of 10% of its national investigations between 2002 and 2007.

Mr. Kelley was tasked with creating a compliance program to identify and prevent abuse. He looked around at other government agencies, but decided that the private sector was a better model for his program. As a result, the program sounds more like a corporate compliance program and not merely a government bureaucracy.

That means, there is a strong emphasis on management buy-in, the tone at the top and risk reduction methodology. To show the tone at the top, FBI Director Robert S. Mueller, III took time out of his day to speak with the group and talk about the importance of the compliance program.

The Office of Integrity and Compliance reports to the Deputy Director and has a council of senior leaders to help oversee and guide the program. The leaders come from across the Bureau giving a wide swath of exposure to the operational risks they confront.

As with any compliance program, training is a challenge. As global organization, the FBI has tens of thousands of employees spread out across hundreds of offices across the United States and the foreign jurisdictions. Training is at a premium because it can’t be an operational impediment. You would hate to think the FBI missed an opportunity to prevent a major incident from occurring because the agent was sitting in a compliance training program.

On the other hand, I felt the FBI took compliance and operational limitations under the law and the constitution very seriously.

In addition to the compliance side of the OIC, there is also a formal ethics program. These too involve similar themes as you would see in a corporate environment:

  • Gifts (Personal Gifts, Gifts of Travel, Gifts to FBI)
  • Use of Government Property/Time
  • Conflicts of Interest
  • Financial Disclosure
  • Awards
  • Outside Employment
  • Involvement in Non-Federal entities
  • Political Activities
  • Misuse of Position
  • Endorsement and preferential treatment
  • Fundraising in the Federal Workplace

The big issue confronting the OIC is the new disclosure requirements as a result of the STOCK Act. The law was revised to requires certain executive branch employees to make financial disclosures just as Congress is required. That means some FBI employees will need to start making financial disclosures or need to make expanded financial disclosures.

Sources:

My Visit with the FBI

You would expect a visit with the FBI to be terrifying. When they come with their badges out and windbreakers on, you are in trouble. The FBI headquarters is easy spot, sitting right on Pennsylvania Avenue in Washington, D.C. Even once you get past the security guards and metal detectors in the front lobby, visitors have to pass through two more security checkpoints. Fortunately, my visit did not involve handcuffs.

The Federal Bureau of Investigation partnered with the Society of Corporate Compliance and Ethics to host the FBI Corporate Compliance Officer Outreach Event. I was fortunate enough to attend.

Patrick W. Kelley, Chief Compliance Officer, Office of Integrity and Compliance of the Federal Bureau of Investigation, was the host. That was the first unexpected piece information. The FBI has a Chief Compliance Officer and a formal compliance program. The second unexpected piece of information was that the FBI’s compliance program faces many of the same issues as any company’s compliance program.

Like many compliance programs, it was born from a crisis. The FBI was accused of abusing the use of National Security Letters. An NSL is a demand letter, which differs from a subpoena. It is issued to an organization, typically a telecom or ISP, to turn over various record and data. NSLs can only request non-content information, such as transactional records, phone numbers dialed or email addresses mailed to and from. Section 505 of the USA PATRIOT Act greatly expanded the use of the NSLs. An internal FBI audit found that they violated the NSL rules more than 1000 times in an audit of 10% of its national investigations between 2002 and 2007.

The FBI Director Robert S. Mueller, III did not like the abuse and tasked Mr. Kelley with creating a compliance program to identify and prevent abuse. To their credit, they also expanded the compliance program to cover 49 other areas of risk.

I’ll be posting more stories from this event over the next few days.