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109 enjoining it from future violations of the books and records and internal controls provisions and paid a civil penalty of $1,500,000. Complaint, SEC v. Lucent, supra note 97. Additionally, the company entered into a non-prosecution agreement with DOJ and paid a $1,000,000 monetary penalty. Non-Pros. Agreement, In re Lucent, supra note 97. 10 United States v. Liebo, 923 F.2d 1308, 1311 (8th Cir. 1991). ‘©! Judgment, United States v. Liebo, No. 89-cr-76 (D. Minn. Jan. 31, 1992), available at http ://wwwjustice.gov/criminal/fraud/fcpa/cases/ liebor/1992-01-3 1-liebor-judgment.pdf. 102 Complaint, SECy. Schering-Plough Corp., No, 04-cv-945 (D.D.c. June 9, 2004), ECF No. 1, available at http://www.sec.gov/litigation/ complaints/comp 1 8740. pdf; Admin. Proceeding Order, In the Matter of Schering-Plough Corp., Exchange Act Release No. 49838 (June D5 2004) (finding that company violated FCPA accounting provisions and imposing $500,000 civil monetary penalty), available at hetp:/ /WWw.sec. gov/ litigation/ admin/34-49838. htm. 3 ECPA opinion procedure releases can be found at http://www. justice.gov/ criminal/fraud/ fepa/ . In the case of the company seeking to contribute the $1.42 million grant toa local MFI, DOJ noted that it had undertaken each of these due diligence steps and controls, in addition to others, that would minimize the likelihood that anything of value would be given to any officials of the Eurasian country. U.S. DEPT. OF JUSTICE, FCPA Op. RELEASE 10-02 (July 16, 2010), available at http://www. justice.gov/criminal/fraud/fcpa/opinion/20 10/1 002.pdf. '04US, Dept. oF JUSTICE, FCPA Op. RELEASE 95-01 (Jan. 11, 1995), available at http ://wwwjustice.gov/criminal/fraud/fcpa/ opinion/1995/9501.pdf. 105 J. 106 Fy 107 US. DEPT. OF JUSTICE, FCPA Op. RELEASE 97-02 (Nov. 5, 1997), available at http ://wwwjustice.gov/criminal/fraud/fcpa/ opinion/1997/9702.pdf; US. Dept. oF Justice, FCPA Op, RELEASE 06-01 (Oct. 16, 2006), available at http ://wwwjustice.gov/criminal/ fraud/fepa/opinion/2006/060 1 pdf. 108 US. DEPT. OF JUSTICE, FCPA Op. RELEASE 06-01 (Oct. 16, 2006). 109 1 mi ‘1 See Section 30A (a) (1)-(3) of the Exchange Act, 15 US.C. § 78dd-1(a) (1)-(3); 15 US.C. §§ 78dd-2(a)(1)-(3), 78dd-3(a)(1)-(3). '? Section 30A(F)(1)(A) of the Exchange Act, 15 US.C. § 78dd-1(f)(1) (A); 15 US.C. §§ 78dd-2(h)(2)(A), 78dd-3(£)(2)(A). 13 Under the FCPA, any person “acting in an official capacity for or on behalf of” a foreign government, a department, agency, or instrumentality thereof, or a public international organization, isa foreign official. Section 30A(f)(1) (A), 15 US.C. § 78dd-1(£)(1)(A); 15 US.C. §§ 78dd-2(h) (2) (A), 78dd-2(f)(2)(A). See also U.S. DEPT. OF Justice, FCPA Op. RELEASE No. 10-03, at 2 (Sept. 1, 2010), available at http ://wwwjustice.gov/criminal/fraud/fcpa/opinion/20 10/ 1003.pdf (listing safeguards to ensure that consultant was not acting on behalf of foreign government). '"4 But see Sections 30A(b) and f(3)(A) of the Exchange Act, 15 US.C. § 78dd-1(b) & (£)(3); 15 US.C. §§ 78dd-2(b) & (h)(4), 78dd-3(b) & (F) (4) (facilitating payments exception). ‘5 Even though payments to a foreign government may not violate the anti-bribery provisions of the FCPA, such payments may violate other US. laws, including wire fraud, money laundering, and the FCPA’s accounting provisions. This was the case in a series of matters brought by DOJ and SEC involving kickbacks to the Iraqi government through the United Nations Oil-for-Food Programme. See, é.¢., Complaint, SEC v. Innospec, supra note 79; Criminal Information, United States v. Innospec, supra note 79; Complaint, SEC v. Novo Nordisk A/S, No. 09-cv-862 (D.D.C. May 11, 2009), ECF No. 1, available at http://www.sec.gov/ litigation/ complaints/ 2009/comp21033. pdf; Criminal Information, United States v. Novo Nordisk A/S, No. 09-cr-126 (D.D.C. May 11, 2009), ECF No. 1, available at http://www,justice.gov/criminal/ fraud/fepa/cases/nordiskn/05- 1 1-09novo-info.pdf; Complaint, SEC v. Ingersoll-Rand Company Ltd., No. 07-cv-1955 (D.D.C. Oct. 31, 2007), ECF No. 1, available at http://www.sec.gov/litigation/ complaints/ 2007 / comp20353.pdf; Criminal Information, United States v. Ingersoll-Rand Traliana SpA, No. 07-cr-294 (D.D.C. Oct. 31, 2007), ECF No. 1, available at http ://www.justice.gov/criminal/fraud/fcpa/ cases/ ingerand-italiana/ 10-3 1-07ingersollrand-info. pdé; Complaint, SEC v. York Int'l Corp., No. 07-cv-1750 (D.D.C. Oct. 1, 2007), ECF No. 1 [hereinafter SEC v. York Int'l Corp.|, available at http://www.sec. gov/ litigation/ complaints/ 2007/comp2031 9.pdé; Criminal Information, United States v. York Int'l Corp., No. 07-cr-253 (D.D.C. Oct. 1, 2007), ECF No. 1 [hereinafter United States v. York Int'l Corp.|, available at http ://www.justice.gov/criminal/fraud/fcpa/cases/york/ 10-01 -O7york- info.pdf; Complaint, SEC vy. Textron Inc., No. 07-cv- 1505 (D.D.C. Aug. 23, 2007), ECF No. 1 [hereinafter SEC v. Textron], available at http:// www.sec.gov /litigation/complaints/2007 /comp2025 L.pdf; Non-Pros. Agreement, In re Textron Inc. (Aug. 23, 2007), available at http: / | www. justice.gov/ criminal/fraud/ fcpa/ cases/textron-inc/08-21-07textron- agree.pdf. DOJ has issued opinion procedure releases concerning payments (that were, in essence, donations) to government agencies or departments. See U.S. DEPT. OF JUSTICE, FCPA Op. RELEASE 09-01 (Aug. 3, 2009) (involving donation of 100 medical devices to foreign government), available at http: //wwwejustice.gov / criminal/fraud/ fcpa/opinion/2009/0901.pdf; US. Dept. oF Justice, FCPA Op, RELEASE 06-01 (Oct. 16, 2006) (involving contribution of $25,000 to regional customs department to pay incentive rewards to improve local enforcement of anti-counterfeiting laws), available at http ://www.justice. gov/criminal/fraud/fcpa/opinion/2006/060 1 pdf. 16 The United States has some state-owned entities, like the Tennessee Valley Authority, that are instrumentalities of the government. Mc Carthy y. Middle Tenn. Elec. Membership Corp., 466 E3d 399, 411 n.18 (6th Cir. 2006) (“[T]here is no question that TVA is an agency and instrumentality of the United States.) (internal quotes omitted). "During the period surrounding the FCPA’s adoption, state-owned entities held virtual monopolies and operated under state-controlled price-setting in many national industries around the world. See generally WOoRLD BANK, BUREAUCRATS IN BusINEss: THE ECONOMICS AND POLITICS OF GOVERNMENT OWNERSHIP, WORLD BANK Poricy RESEARCH Report at 78 (1995); SUNITA KIKERI AND AISHETU KOLO, STATE ENTERPRISES, THE WORLD BANK GROUP (Feb. 2006), available at http // rru.worldbank.org/ documents/ publicpolicyjournal/ 304Kikeri_Kolo.pdf. "8 Td. at 1 (“[A]fter more than two decades of privatization, government ownership and control remains widespread in many regions—and in many parts of the world still dominates certain sectors.”). "9'To date, consistent with the approach taken by DOJ and SEC, all district courts that have considered this issue have concluded that this is an issue of fact fora jury to decide. See Order, United States v. Carson, 2011 WL 5101701, No. 09-cr-77 (C.D. Cal. May 18, 2011), ECF No. 373 [hereinafter United States v. Carson]; United States v. Aguilar, 783 F Supp. 2d 1108 (C.D. Cal. 201 1); Order, United States v. Esquenazi, supra note 44, ECF No. 309; see also Order, United States v. O'Shea, No. 09-cr-629 (S.D. Tex. Jan. 3, 2012), ECF No. 142; Order, United States y. Nguyen, No. 08-cr-522 (E.D. Pa. Dec. 30, 2009), ECE No. 144. These district court decisions are consistent with the acceptance by district courts around the country of over 35 guilty pleas by individuals who admitted to violating the FCPA by bribing officials of state-owned or state-controlled entities. See Government's Opposition to Defendants’ Amended Motion to Dismiss Counts One Through Ten of the Indictment at 18, United States v. Carson, supra note 119, ECF No. 332; Exhibit I, United States v. Carson, supra note 119, ECF No. 335 (list of examples of enforcement actions based on foreign officials of state-owned entities). ?°Tury Instructions, United States v. Esquenazi, supra note 44, ECF No. 520; Order at 5 and Jury Instructions, United States v. Carson, supra note 119, ECF No. 373 and ECF No. 549; Aguilar, 783 F. Supp. 2d at 1115. 21 Criminal Information, United States v. C.E. Millier Corp., et al., No. 82-cr-788 (C.D. Cal. Sept. 17, 1982), available at http://www. justice.gov/criminal/fraud/fcpa/cases/ce-miller/ 1982-09-17-ce-miller- information. pdf. 22 See Complaint, SEC v. Sam P, Wallace Co., Inc., et al, No. 81-cv- 1915 (D.D.C. Aug. 31, 1982); Criminal Information, United States v. Sam P. Wallace Co., Inc., No. 83-cr-34 (D.B.R. Feb. 23, 1983), available at http ://www.justice.gov/ criminal/fraud/ fcpa/ cases/sam-wallace- company/ 1983-02-23-sam-wallace-company-information.pdf; see also Criminal Information, United States v. Goodyear Int'l Corp., No. 89- cr-156 (D.D.C. May 11, 1989) (Iraqi Trading Company identified as “instrumentality of the Government of the Republic of Iraq”), available at http ://www.justice.gov/criminal/fraud/fcpa/cases/goodyear/ 1989- HOUSE_OVERSIGHT_022611