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impending threat of death or serious bodily injury; that the defendant did not negligently or recklessly create a situation where he would be forced to engage in criminal conduct (e.g. had been making payments as part of an ongoing bribery scheme); that the defendant had no reasonable legal alternative to violating the law; and that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. See Eleventh Circuit Pattern Jury Instr., Special Instr. No. 16 (2003); see also Fifth Circuit Pattern Jury Instr. No. 1.36 (2001); Sixth Circuit Pattern Jury Instr. No. 6.05 (2010); Seventh Circuit Pattern Jury Instr. No. 6.08 (1998); Ninth Circuit Pattern Jury Instr. No. 6.5 (2010); 1A Kevin F. O'Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice and Instructions § 19.02 (6th ed. 2008 & Supp. 2012). 1S, Rep. No. 95-114, at 11. 1 Td. at 10. 2 Td. at 11. 13 United States v. Kozeny, 582 FE. Supp. 2d 535, 540 n.31 (S.D.NY. 2008). "4 Kozeny, 582 FE, Supp. 2d at 540 (citing S. Rep. No. 95-114, at 10-11). 175 J '%6 These payments, however, must be accurately reflected in the company’s books and records so that the company and its management are aware of the payments and can assure that the payments were properly made under the circumstances. For example, in one instance, a Kazakh immigration prosecutor threatened to fine, jail, or deport employees ofa US. company’s subsidiary. Believing the threats to be genuine, the employees in Kazakhstan sought guidance from senior management of the US. subsidiary and were authorized to make the payments. The employees then paid the government official a total of $45,000 using personal funds. The subsidiary reimbursed the employees, but it falsely recorded the reimbursements as “salary advances” or “visa fines.” The parent company, which eventually discovered these payments, as well as other improperly booked cash payments made to a Kazakhstani consultant to obtain visas, was charged with civil violations of the accounting provisions. Admin. Proceeding Order, In the Matter of NATCO Group Inc., Exchange Act Release No. 61325 (Jan. 11, 2010), available at http ://www.sec.gov/litigation/admin/20 10/34-6 1325.pdf (imposing cease-and-desist order and $65,000 civil monetary penalty). ar See Jury Instructions at 21, United States v. Aguilar, No. 10-cr-1031 (C.D. Cal. May 16, 2011), ECF No. 511. "8 See, 6.8.5 Pacific Can Co. v. Hewes, 95 F.2d 42, 46 (9th Cir. 1938) (“Where one corporation is controlled by another, the former acts not for itself but as directed by the latter, the same as an agent, and the principal is liable for the acts of its agent within the scope of the agent's authority.”); United States v. NYNEX Corp., 788 EF. Supp. 16, 18 n.3 (D.D.C. 1992) (holding that “[a] corporation can of course be held criminally liable for the acts of its agents,” including “the conduct of its subsidiaries.”). '? Pacific Can Co. 95 F.2d at 46; NYNEX Corp., 788 F. Supp. at 18 n.3. 10 See, 6.8.5 Standard Oil Co. v. United States, 307 F2d 120, 127 (Sth Cir. 1962). 181 Admin. Proceeding Order, In the Matter of United Industrial Corp., Exchange Act Release No. 60005 (May 29, 2009), available at hetp:// www.sec.gov/litigation/admin/2009/34-60005.pdf; see also Lit. Release No. 21063, SEC v. Worzel (May 29, 2009), available at hetp://www.sec. gov/ litigation/ litreleases/2009/Ir2 1063 htm. © See, 6.8.5 Philip Urofksy, What You Don’t Know Can Hurt You: Successor Liability Resulting From Inadequate FCPA Due Diligence in M&A Transactions, 1763 PLI/Corp. 631, 637 (2009) (“As a legal matter, when one corporation acquires another, it assumes any existing liabilities of that corporation, including liability for unlawful payments, regardless of whether it knows of them.”). Whether or not successor liability applies to a particular corporate transaction depends on the facts involved and state, federal, and, potentially, foreign law. 183 See, 6.8.5 Carolyn Lindsey, More Than You Bargained for: Successor Liability Under the U.S. Foreign Corrupt Practices Act, 35 OHIO NLU. L. REv. 959, 966 (2009) (“Allowing a company to escape its debts and liabilities by merging with another entity is considered to lead to an unjust result.”). 184 See, C85 Melrose Distillers, Inc. v. United States, 359 U.S. 271, 274 (1959) (affirming criminal successor liability for antitrust violations); United States v. Alamo Bank of Texas, 880 F.2d 828, 830 (5th Cir. 1989) Endnotes (affirming criminal successor liability for Bank Secrecy Act violations); United States v. Polizzi, 500 E2d 856, 907 (9th Cir. 1974) (affirming criminal successor liability for conspiracy and Travel Act violations); United States v. Shields Rubber Corp., 732 FE Supp. 569, 571-72 (W.D. Pa. 1989) (permitting criminal successor liability for customs violations); see also United States v. Mobile Materials, Inc., 776 F.2d 1476, 1477 (10th Cir. 1985) (allowing criminal post-dissolution liability for antitrust, mail fraud, and false statement violations);. 185) Complaint, SEC v. The Titan Corp., No. 05-cv-411 (D.D.C, Mar. 1, 2005) (discovery of FCPA violations during pre-acquisition due diligence protected potential acquiring company and led to termination of merger agreement), available at http ://www.sec.gov/ litigation/ complaints/ comp 19107.pdf; Criminal Information, United States v. Titan Corp., No. 05-cr-314 (S.D. Cal. Mar. 1, 2005) (same) [hereinafter United States v. Titan Corp], available at http ://wwwjustice.gov/criminal/fraud/fcpa/ cases/titan-corp/03-01 -O5titan-info.pdf. 186 For a discussion of declinations, see Chapter 7. 187 See Complaint, SEC v. El Paso Corp., No, 07-cv-899 (S.D.NY. Feb. 7, 2007), ECF No. 1 [hereinafter SEC v. El Paso Corp.] (charging company with books and records and internal controls charges for improper payments to Iraq under UN. Oil-for-Food Programme), available at http://www.sec.gov/litigation/complaints/2007/comp 19991 pdf. 188 Complaint, SEC y. Alliance One Int’l, Inc., No. 10-cv-1319 (D.D.C. Aug, 6, 20 10), ECF No. 1, available at http://www.sec.gov/litigation/ complaints/20 10/comp21 61 8-alliance-one.pdf; Non-Pros. Agreement, In re Alliance One Int'l, Inc. (Aug. 6, 2010), available at http:/ / www. justice.gov/criminal/fraud/fcpa/cases/alliance-one/08-06- 10alliance- one-npa.pdf; Criminal Information, United States v. Alliance One Int’l AG, No. 10-cr-17 (W.D. Va. Aug. 6, 2010), ECF No. 3, available at http://wwwjustice.gov/criminal/fraud/fepa/cases/alliance-one/08-06- 10alliance-one-info.pdf; Criminal Information, United States v. Alliance One Tobacco Osh, LLC, No. 10-cr-16 (W.D. Va. Aug. 6, 2010), ECF No. 3, available at http ://www justice.gov/criminal/fraud/fcpa/cases/ alliance-one/08-06- 10alliance-one-tobaccoinfo.pdf. 189 See Criminal Information, United States v. Syncor ‘Taiwan, Inc., No. 02-cr-1244 (C.D. Cal. Dec. 5, 2002), ECF No. 1, available at http:// www.justice.gov/ criminal/fraud/ fcpa/ cases/syncor-taiwan/12-05- 02syncor-taiwan-info.pdf; Plea Agreement, United States v. Syncor ‘Taiwan, Inc., No. 02-cr-1244 (C.D. Cal. Dec. 9, 2002), ECF No. 14, available at http ://www.justice.gov/ criminal/fraud/ fcpa/ cases/syncor- taiwan/ 12-03-02syncor-taiwan-plea-agree.pdf. 199 See Complaint, SEC v. Syncor Int'l Corp., No. 02-cv-2421 (D.D.C. Dec. 10, 2002), ECF No. 1, available at http://www.sec.gov/litigation/ complaints/comp 17887.htm; SEC v. Syncor International Corp., SEC Lit. Rel. 17997, (Dec. 10, 2002), available at http://www.sec.gov/ litigation/litreleases/Ir17887 htm. 191 See Complaint, SEC v. York Int'l Corp., supra note 115; Criminal Information, United States v. York Int'l Corp., supra note 115. 192 See Criminal Information, United States v. Latin Node, Inc., No. 09-cr-20239 (S.D. Fla. Mar. 23, 2009), ECF No. 1, available at http:// wwwjustice.gov/criminal/fraud/fcpa/cases/litton-ap plied/03-23- 09latinnode-info.pdf; eLandia Int'l Inc., Annual Report (Form 10-K), at 20 (Apr. 2, 2009), available at http://www.sec.gov/Archives/edgar/ data/1352819/0001193 1250907096 1/d10k.htm. 193 See Criminal Information, United States v. Salvoch, No. 10-cr-20893 (S.D. Fla. Dec. 17, 2010), ECF No. 3, available at http://www.justice. gov/criminal/fraud/fcpa/cases/salvoch/ 12-17- 10salvoch-info.pdf; Criminal Information, United States v. Vasquez, No. 10-cr-20894 (S.D. Fla. Dec. 17, 2010), ECF No. 3, available at http://www.justice.gov/ criminal /fraud/fcpa/cases/vasquezjp/ 12-17- 10vasquez-juan-info.pdf; Indictment, United States v. Granados, et al., No. 10-cr-20881, (S.D. HOUSE_OVERSIGHT_022614