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115 order to make clear that, consistent with enforcement policy at the time, criminal penalties would not be imposed “for inadvertent or insignificant errors in books and records, or inadvertent violations of accounting controls.” See S. Rep. No. 100-85, at 49; H.R. Rep. No. 100-576, at 916 (“The Conferees intend to codify current Securities and Exchange Commission (SEC) enforcement policy that penalties not be imposed for insignificant or technical infractions or inadvertent conduct.”). 215 USC. § 78f{a). 265 See United States v. Alcatel-Lucent, S.A., supra note 48; see also United States v. Alcatel-Lucent France, supra note 56. 266 See Deferred Prosecution Agreement, United States v. Alcatel-Lucent, S.A., supra note 48, ECF No. 10, available at http://www.justice.gov/ criminal/fraud/fcpa/cases/alcatel-etal/02-22- 1 lalcatel-dpa.pdf. 267 See Plea Agreement, United States v. Siemens AG, supra note 48, ECF No. 14, available at http ://wwwjustice.gov/criminal/fraud/fcpa/cases/ siemens/ 12-1 5-O08siemensakt-plea.pdf. 268 See Minute Entry of Guilty Plea, United States v. Peterson, supra note 8, ECF 13; see adso Press Release, U.S. Dept. of Justice, Former Morgan Stanley Managing Director Pleads Guilty for Role in Evading Internal Controls Required. by FCPA (Apr. 23,2012), available at http://www. justice.gov/opa/pr/20 12/April/ 12-crm-534,html. 26 See Criminal Information, United States v. Baker Hughes Svcs. Int'l, No. 07-cr-129 (S.D. Tex. Apr. 11, 2007), ECF No. 1, available at http ://wwwjustice.gov/criminal/fraud/fcpa/cases/baker-hughs/04- 1l1- 07bakerhughesintl-info.pdf. 2? See United States v. Panalpina, Inc, supra note 68. 271 Td. °? See FASB Statement of Financial Accounting Concepts No. 2, 19] 63-80. *3 PCAOB Auditing Standard No. 12 and PCAOB AU Section 325. 274 See Section 10A of the Exchange Act, 1SUS.C. § 78)-1. 75.18 US.C. § 1952. 278 See, e.g., United States v. Nexus Technologies, supra note 53; Criminal Information, United States v. Robert Richard King, et al,, No. 01-cr-190 (W.D. Mo. June 27, 2001), available at hetp://www.justice.gov/criminal/ fraud/ fcpa/ cases/. kingr-etal/ 0 5-03-02king-robert-indict.pdf; Superseding Indictment, United States v. Mead, supra note 44; Criminal Information, United States v. Saybolt North America Inc., e¢ al., No. 98-cr-10266 (D. Mass. Aug. 18, 1998), available at http ://wwwjustice.gov/criminal/ fraud/fcpa/cases/saybolt/08- 10-98saybolt-info.pdf. 277 See Second Superseding Indictment, United States v. Kozeny, No. 05- cr-518 (S.D.NY. May 26, 2009), ECF No. 203, available at http://www. justice.gov/criminal/fraud/fcpa/cases/kozenyv/05-26-09bourke2nd- supersed-indict.pdf; Judgment, United States v. Bourke, No. 05-cr-518 (S.D.N-Y. Noy. 12, 2009), ECF No. 253, available at http://www.justice. gov/ criminal/fraud/ fcpa/ cases/ kozenyv/ 11-1 2-09bourke-judgment.pdf. 278 Diea Agreement, United States v. Control Components, supra note 235, ECE No. 7; see also Order, United States v. Carson, supra note 119, ECF No. 440 (denying motion to dismiss counts alleging Travel Act violations), available at http ://www.justice.gov/ criminal/fraud/ fcpa/ cases/carsons/201 1-09-20-carson-minutes-denying-motion-to-dismiss. pdf. 2? See, 0.85 Criminal Information, Uxited States v. Esquenazi, supra note 44; Criminal Information, United States v. Green, supra note 44; Criminal Information, United States v. General Elec. Co., No. 92-cr-87 (S.D. Ohio July 22, 1992), available at http ://wwwjustice.gov/criminal/fraud/fcpa/ cases/ general-electric/ 1992-07-22-general-electric-information. pdf. °8 Foreign officials may “not be charged with violating the FCPA itself, since the [FCPA] does not criminalize the receipt of a bribe by a foreign official.” United States v. Blondek, 741 FSupp. 116, 117 (N.D. Tex. 1990), affd United States v. Castle, 925 F.2d 831 (Sth Cir. 1991) (“We hold that foreign officials may not be prosecuted. under 18 U.S.C. § 37] for conspiring to violate the FCPA?’). Foreign officials, however, can be charged with violating the FCPA when the foreign official acts asan intermediary of a bribe payment. See, eg., Information, United States v. Basu, No. 02-cr-475 (D.D.C. Nov. 26, 2002) (World Bank employee charged with wire fraud and FCPA violations for facilitating bribe payments to another World Bank official and Kenyan government official), available at http: //wwwjustice.gov / criminal/fraud/ fepa/ cases/ basu/1 1-26-02basu-info.pdf; Information, United States v. Sengupta, No. 02-cr-40 (D.D.C. Jan. 30, 2002), available at hetp ://www.justice.gov/ criminal/fraud/fcpa/cases/sengupta/0 1-30-02sengupta-info.pdf. 281 See, e.g, Judgments, United States v. Esquenazi, supra note 44, ECF Nos. 182, 816, 824 (judgments against foreign official defendants). 282 Criminal Information, United States v. SSI Int'l, supra note 235 (alleging violations of 18 U.S.C. §§ 1343, 1346); Plea Agreement, United States v. SSI Int'l, supra note 235, (Oct. 10, 2006), available at hetp:// www.justice.gov/ criminal/fraud/ fcpa/ cases/control-inc/07-24-09cci- plea-agree.pdf. 283 See Ex-Im Bank, Form of Exporter’s Certificate, EBD-M-56 (Jan. 2007), available at http ://www.exim.gov/pub/ins/pdf/ebd-m-56.pdf. 284 See 18 US.C. § 1001. 78592 C.ER. §§ 130.2, 130.9. 286 For example, in United States v. BAE Systems ple, BAE pleaded guilty to conspiring to defraud the United States by impairing and impeding its lawful functions, to making false statements about its FCPA compliance program, and to violating the AECA and ITAR. BAE paid a $400 million fine and agreed toan independent corporate monitor to ensure compliance with applicable anti-corruption and export control laws. Criminal Information and Plea Agreement, United States v. BAE Sys. ple, No. 10-cr-35 (D.D.C. Mar. 1, 2010), ECF Nos.1, 8, available at http ://www.justice.gov/criminal/fraud/fcpa/cases/bae-system/02-0 1- 10baesystems-info.pdf and http ://www.justice.gov/ criminal/fraud/ fcpa/ cases/bae-system/03-0 1-1 Obaesystems-plea-agree.pdf. In an action based on the same underlying facts as the criminal guilty plea, BAE entered a civil settlement with the Directorate of Defense Trade Controls for violations of AECA and ITAR, including over 2500 ITAR violations that included a failure to report the payment of fees or commissions associated with defense transactions and failure to maintain records involving ITAR-controlled transactions. BAE paid $79 million in penalties, and the State Department imposed a “policy of denial” for export licenses on three BAE subsidiaries involved in the wrongful conduct. Consent Agreement between BAE Sys. ple and Defense Trade Controls at 17-20, Bureau of Political-Military Affairs, US. Dept. of State (May 16, 2011), available at http ://www.pmddte.state.gov/compliance/ consent_agreements/ pdt/ BAES_CA. pdf; Proposed. Charging Letter, In re Investigation of BAE Systems ple Regarding Violations of the Arms Export Control Act and the International Traffic in Arms Regulations, US. Dept. of State (May 2011), available at http://www.pmddtc.state. gov/ compliance/ consent_agreements/ pdt/ BAES PCL. pdf. 8726 US.C. § 162(c)(1); see also Plea Agreement, United States v. Smith, No. 07-cr-69 (C.D. Cal. Sept. 3, 2009), ECF No. 89, available at http:// www.justice.gov/ criminal/fraud/ fcpa/ cases/smithl/ 09-03-09smith|-plea- agree.pdf; Criminal Information, United States v. Titan Corp., supra note 185. 288 See USAM § 9-27.000. 8 See USAM § 9-27.420 (setting forth considerations to be weighed when determining whether it would be appropriate to enter into plea agreement). 2° See USAM § 9-28.000 ef seq. | See USAM § 9-28.710 (discussing attorney-client and work product protections). 292 See http ://www.sec.gov/ divisions/enforce/ enforcementmanual.pdf. 3 See USAMS§ 9-28.300.A; see also USAM § 9-28.700.B (explaining benefits of cooperation for both government and corporation). 24 See USAM § 9-28.900 (discussing restitution and remediation). The commentary further provides that prosecutors should consider and weigh whether the corporation appropriately disciplined wrongdoers anda corporation’s efforts to reform, including its quick recognition of the flaws in the program and its efforts to improve the program. Td. 95 See USAM §§ 9-27.230, 9-27.420. 26US, SENTENCING GUIDELINES § 8B2.1(b)(7) (2011). 97 Id. § 8C2.5(F)(2) (2011). »8US. SEC. AND EXCHANGE CoMM., REPORT OF INVESTIGATION PURSUANT TO SECTION 21(A) OF THE SECURITIES EXCHANGE ACT oF 1934 AND COMMISSION STATEMENT ON THE RELATIONSHIP OF COOPERATION TO AGENCY ENFORCEMENT DECISIONS, SEC Rel. Nos. 34-44969 and AAER-1470 (Oct. 23, 2001) [hereinafter Seaboard Report] available at http ://www.sec.gov/litigation/ investreport/ 34-44969. htm. °US. SEC. AND EXCHANGE CoMM., PoLICy STATEMENT CONCERNING COOPERATION BY INDIVIDUALS IN ITS INVESTIGATIONS AND RELATED ENFORCEMENTS ACTIONS, 17 CER. § 202.12 (Jan. 10, 2010), available at http ://www.sec.gov/rules/ HOUSE_OVERSIGHT_022617