Will 'The Galt' go to jail?

[chuckwoww]

Two kids up to their knees in gasoline playing with matches. Neither has much to gain with this nonsense, but both have plenty to lose.

 

So how can they stop? Galt is facing a criminal charge so he has no control. Wade could drop the charge I suppose but his wife has been insulted. Third party pressure could work. Perhaps either the US or Thai governments might be able to work out some face saving solution that satisfies everybody.

 

[Stickman]

 

So how can they stop? Galt is facing a criminal charge so he has no control. Wade could drop the charge I suppose but his wife has been insulted. Third party pressure could work. Perhaps either the US or Thai governments might be able to work out some face saving solution that satisfies everybody.

 

There will be no face saving solution in this case. Clayton has the wherewithal, determination and resilience to follow this through to the end.

[chuckwoww]

There will be no face saving solution in this case. Clayton has the wherewithal, determination and resilience to follow this through to the end.

 

That's my impression too. My understanding is that the slander case was settled, Galt paid a nominal fine but Wade wasn't satisfied. Can you tell me what the actual criminal charge is?

 

[Stickman]

There will be no face saving solution in this case. Clayton has the wherewithal' date=' determination and resilience to follow this through to the end.[/quote']

 

That's my impression too. My understanding is that the slander case was settled, Galt paid a nominal fine but Wade wasn't satisfied. Can you tell me what the actual criminal charge is?

 

I believe the charge is something like "slander by electronic means" but I am not 100% sure on the wording of the charge.

 

There was a 6-figure fine and a suspended prison sentence. The sentence is being appealed by the prosecution - and it is anticipated it will become an order to go straight to jail and not suspended at all.

 

And of course there is will the possibility of civil cases to follow.

 

I think Galt will EITHER end up in prison here and lose everything he has here OR do a runner before the sentencing. One would think running would be what most would do.... No-one wants to end up in a Thai jail.

[chuckwoww]

So it's the sentence that's being appealed. Thanks. The possibilty of more civil cases would suggest Wade's strategy is to harass Galt to the point of bankruptcy.

 

I don't know if this is relevant in a Thai context but it seems to cover online libel (slander is the spoken version)...

 

http://www.eff.org/issues/bloggers/legal/liability/defamation

[ozpharlap]

I haven't seen anything from TH that backs up his claim that the FCPA only applies to businesses. If you check any of the websites on the FCPA, there are very clear that it applies to U.S. nationals - full stop.

 

Did you not read my long post?

 

Why do people even bother posting here sometimes.

 

One requirement to satisfy a prosecution under that legislation is as follows:

 

E. Business Purpose Test -- The FCPA prohibits payments made in order to assist the firm in obtaining or retaining business for or with, or directing business to, any person. The Department of Justice interprets "obtaining or retaining business" broadly, such that the term encompasses more than the mere award or renewal of a contract. It should be noted that the business to be obtained or retained does not need to be with a foreign government or foreign government instrumentality.

 

You will fall foul of the legislation if, and only if, the Business Purpose Test criteria has also been founded as well ... the bribery must relate to a business reason as stated in the business purpose test.

 

Of course legislation may be specific, residential building act relates to only residential building contracts. The FCPA only relates to foreign corruption in respect to business ... acts/legislation by their nature have to be limited in application.

 

Finally, of course individuals are prosecuted, why? Companies and business entities don't have legs, hands or mouths to cause the act of bribery - they are just names on a piece of paper created in a registry, persons, acting unilaterally, in a company role or in an agency are all captured under the legislation but only if the BUSINESS PURPOSE TEST is satisfied in a prosecution.

 

With respect Gadfly, I do not think TH is saying it only applies to a business, but requires a business causational link.

[ozpharlap]

The actual legislation - sorry it is long.

 

78dd-2. Prohibited foreign trade practices by domestic concerns

 

(a) Prohibition

 

It shall be unlawful for any domestic concern, other than an issuer which is subject to section 78dd-1 of this title, or for any officer, director, employee, or agent of such domestic concern or any stockholder thereof acting on behalf of such domestic concern, to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to--

 

(1) any foreign official for purposes of--

 

(A) (i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or

 

( inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,

 

in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person;

 

(2) any foreign political party or official thereof or any candidate for foreign political office for purposes of--

 

(A) (i) influencing any act or decision of such party, official, or candidate in its or his official capacity, (ii) inducing such party, official, or candidate to do or omit to do an act in violation of the lawful duty of such party, official, or candidate, or (iii) securing any improper advantage; or

 

( inducing such party, official, or candidate to use its or his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,

 

in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person;

 

(3) any person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official, to any foreign political party or official thereof, or to any candidate for foreign political office, for purposes of--

 

(A) (i) influencing any act or decision of such foreign official, political party, party official, or candidate in his or its official capacity, (ii) inducing such foreign official, political party, party official, or candidate to do or omit to do any act in violation of the lawful duty of such foreign official, political party, party official, or candidate, or (iii) securing any improper advantage; or

 

( inducing such foreign official, political party, party official, or candidate to use his or its influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,

 

in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person.

 

( Exception for routine governmental action

 

Subsections (a) and (i) of this section shall not apply to any facilitating or expediting payment to a foreign official, political party, or party official the purpose of which is to expedite or to secure the performance of a routine governmental action by a foreign official, political party, or party official.

 

© Affirmative defenses

 

It shall be an affirmative defense to actions under subsection (a) or (i) of this section that--

 

(1) the payment, gift, offer, or promise of anything of value that was made, was lawful under the written laws and regulations of the foreign official’s, political party’s, party official’s, or candidate’s country; or

 

(2) the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to--

 

(A) the promotion, demonstration, or explanation of products or services; or

 

( the execution or performance of a contract with a foreign government or agency thereof.

 

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(d) Injunctive relief

 

(1) When it appears to the Attorney General that any domestic concern to which this section applies, or officer, director, employee, agent, or stockholder thereof, is engaged, or about to engage, in any act or practice constituting a violation of subsection (a) or (i) of this section, the Attorney General may, in his discretion, bring a civil action in an appropriate district court of the United States to enjoin such act or practice, and upon a proper showing, a permanent injunction or a temporary restraining order shall be granted without bond.

 

(2) For the purpose of any civil investigation which, in the opinion of the Attorney General, is necessary and proper to enforce this section, the Attorney General or his designee are empowered to administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any books, papers, or other documents which the Attorney General deems relevant or material to such investigation. The attendance of witnesses and the production of documentary evidence may be required from any place in the United States, or any territory, possession, or commonwealth of the United States, at any designated place of hearing.

 

(3) In case of contumacy by, or refusal to obey a subpoena issued to, any person, the Attorney General may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of books, papers, or other documents. Any such court may issue an order requiring such person to appear before the Attorney General or his designee, there to produce records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey such order of the court may be punished by such court as a contempt thereof.

 

All process in any such case may be served in the judicial district in which such person resides or may be found. The Attorney General may make such rules relating to civil investigations as may be necessary or appropriate to implement the provisions of this subsection.

 

(e) Guidelines by Attorney General

 

Not later than 6 months after August 23, 1988, the Attorney General, after consultation with the Securities and Exchange Commission, the Secretary of Commerce, the United States Trade Representative, the Secretary of State, and the Secretary of the Treasury, and after obtaining the views of all interested persons through public notice and comment procedures, shall determine to what extent compliance with this section would be enhanced and the business community would be assisted by further clarification of the preceding provisions of this section and may, based on such determination and to the extent necessary and appropriate, issue--

 

(1) guidelines describing specific types of conduct, associated with common types of export sales arrangements and business contracts, which for purposes of the Department of Justice’s present enforcement policy, the Attorney General determines would be in conformance with the preceding provisions of this section; and

 

(2) general precautionary procedures which domestic concerns may use on a voluntary basis to conform their conduct to the Department of Justice’s present enforcement policy regarding the preceding provisions of this section.

 

The Attorney General shall issue the guidelines and procedures referred to in the preceding sentence in accordance with the provisions of subchapter II of chapter 5 of Title 5 and those guidelines and procedures shall be subject to the provisions of chapter 7 of that title.

 

(f) Opinions of Attorney General

 

(1) The Attorney General, after consultation with appropriate departments and agencies of the United States and after obtaining the views of all interested persons through public notice and comment procedures, shall establish a procedure to provide responses to specific inquiries by domestic concerns concerning conformance of their conduct with the Department of Justice’s present enforcement policy regarding the preceding provisions of this section. The Attorney General shall, within 30 days after receiving such a request, issue an opinion in response to that request. The opinion shall state whether or not certain specified prospective conduct would, for purposes of the Department of Justice’s present enforcement policy, violate the preceding provisions of this section. Additional requests for opinions may be filed with the Attorney General regarding other specified prospective conduct that is beyond the scope of conduct specified in previous requests. In any action brought under the applicable provisions of this section, there shall be a rebuttable presumption that conduct, which is specified in a request by a domestic concern and for which the Attorney General has issued an opinion that such conduct is in conformity with the Department of Justice’s present enforcement policy, is in compliance with the preceding provisions of this section. Such a presumption may be rebutted by a preponderance of the evidence. In considering the presumption for purposes of this paragraph, a court shall weigh all relevant factors, including but not limited to whether the information submitted to the Attorney General was accurate and complete and whether it was within the scope of the conduct specified in any request received by the Attorney General. The Attorney General shall establish the procedure required by this paragraph in accordance with the provisions of subchapter II of chapter 5 of Title 5 and that procedure shall be subject to the provisions of chapter 7 of that title.

 

(2) Any document or other material which is provided to, received by, or prepared in the Department of Justice or any other department or agency of the United States in connection with a request by a domestic concern under the procedure established under paragraph (1), shall be exempt from disclosure under section 552 of Title 5 and shall not, except with the consent of the domestic concern, by made publicly available, regardless of whether the Attorney General response to such a request or the domestic concern withdraws such request before receiving a response.

 

(3) Any domestic concern who has made a request to the Attorney General under paragraph (1) may withdraw such request prior to the time the Attorney General issues an opinion in response to such request. Any request so withdrawn shall have no force or effect.

 

(4) The Attorney General shall, to the maximum extent practicable, provide timely guidance concerning the Department of Justice’s present enforcement policy with respect to the preceding provisions of this section to potential exporters and small businesses that are unable to obtain specialized counsel on issues pertaining to such provisions. Such guidance shall be limited to responses to requests under paragraph (1) concerning conformity of specified prospective conduct with the Department of Justice’s present enforcement policy regarding the preceding provisions of this section and general explanations of compliance responsibilities and of potential liabilities under the preceding provisions of this section.

 

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(g) Penalties

(1)

 

(A) Any domestic concern that is not a natural person and that violates subsection (a) or (i) of this section shall be fined not more than $2,000,000.

 

( Any domestic concern that is not a natural person and that violates subsection (a) or (i) of this section shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General.

(2)

 

(A) Any natural person that is an officer, director, employee, or agent of a domestic concern, or stockholder acting on behalf of such domestic concern, who willfully violates subsection (a) or (i) of this section shall be fined not more than $100,000 or imprisoned not more than 5 years, or both.

 

( Any natural person that is an officer, director, employee, or agent of a domestic concern, or stockholder acting on behalf of such domestic concern, who violates subsection (a) or (i) of this section shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General.

(3) Whenever a fine is imposed under paragraph (2) upon any officer, director, employee, agent, or stockholder of a domestic concern, such fine may not be paid, directly or indirectly, by such domestic concern.

 

(h) Definitions

 

For purposes of this section:

(1) The term "domestic concern" means--

 

(A) any individual who is a citizen, national, or resident of the United States; and

 

( any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship which has its principal place of business in the United States, or which is organized under the laws of a State of the United States or a territory, possession, or commonwealth of the United States.

(2)

 

(A) The term “foreign official†means any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.

 

( For purposes of subparagraph (A), the term "public international organization" means --

 

(i) an organization that has been designated by Executive order pursuant to Section 1 of the International Organizations Immunities Act (22 U.S.C. § 288); or

 

(ii)any other international organization that is designated by the President by Executive order for the purposes of this section, effective as of the date of publication of such order in the Federal Register.

(3) (A) A person's state of mind is "knowing" with respect to conduct, a circumstance, or a result if--

 

(i) such person is aware that such person is engaging in such conduct, that such circumstance exists, or that such result is substantially certain to occur; or

 

(ii) such person has a firm belief that such circumstance exists or that such result is substantially certain to occur.

 

( When knowledge of the existence of a particular circumstance is required for an offense, such knowledge is established if a person is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist.

(4) (A) The term "routine governmental action"means only an action which is ordinarily and commonly performed by a foreign official in--

 

(i) obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country;

 

(ii) processing governmental papers, such as visas and work orders;

 

(iii) providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or inspections related to transit of goods across country;

 

(iv) providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or

 

(v) actions of a similar nature.

 

( The term "routine governmental action" does not include any decision by a foreign official whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by a foreign official involved in the decision-making process to encourage a decision to award new business to or continue business with a particular party.

 

(5) The term "interstate commerce"means trade, commerce, transportation, or communication among the several States, or between any foreign country and any State or between any State and any place or ship outside thereof, and such term includes the intrastate use of--

 

(A) a telephone or other interstate means of communication, or

 

( any other interstate instrumentality.

 

(i) Alternative Jurisdiction

(1) It shall also be unlawful for any United States person to corruptly do any act outside the United States in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to any of the persons or entities set forth in paragraphs (1), (2), and (3) of subsection (a), for the purposes set forth therein, irrespective of whether such United States person makes use of the mails or any means or instrumentality of interstate commerce in furtherance of such offer, gift, payment, promise, or authorization.

(2) As used in this subsection, a "United States person"means a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. § 1101)) or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship organized under the laws of the United States or any State, territory, possession, or commonwealth of the United States, or any political subdivision thereof.

 

 

[chuckwoww]

I don't know why you guys are making such a big deal out of the FCPA rulings. Isn't it all contingent on somebody bribing a foreign official? What does that have to do with the Galt/Wade case?

[USVirgin]

As far as international incidents go, in my estimation, the whole affair would have been filed in the 'who gives a fuck?' bin ages ago, that is if anyone at the embassy gave a fuck to review it were it called to their attention in the first place.

[ThaiHome]

I don't know why you guys are making such a big deal out of the FCPA rulings. Isn't it all contingent on somebody bribing a foreign official? What does that have to do with the Galt/Wade case?

 

Gaddie is one that brought the FCPA into this and will not admit he is wrong. He continues to twist words, misquote, and use strawman arguments in order to keep from having to admit that all his posts about this, culminating with the scary one on being meet at a US airport and put into handcuffs was totally wrong.

 

As the law itself clearly states, there must be a business reason, i.e., obtaining or retaining business or getting an unfair advantage over competitors. This case is about none of that.

 

TH