After the 2009 special enforcement initiative, called Operation Mirage, CBP compiled statistical data proved that the undervaluation of imported goods from China had risen to the level of significant risk in some product categories. Supported by the Administration’s direction to level the trade playing field, addressing undervaluation will continue to be part of CBP’s comprehensive trade enforcement strategy.
While working for CBP, an in-house counsel remarked that you would know you are on the right enforcement track when case law supports your theory of risk.
An example of this observation recently surfaced. In a press release dated October 3, Immigration and Customs Enforcement reported that, as alleged in a False Claims Act complaint, a company called Notations, acting as a wholesaler, repeatedly ignored warning signs that its business partner, which imported garments from China, was engaged in a scheme to underpay customs duties on the imported garments it sold to Notations. Pursuant to the settlement, Notations admitted and accepted responsibility for failing to act in response to indications of fraudulent conduct. The company agreed to pay $1 million in damages, and implement measures designed to prevent future fraud in its business and supply chain operations.
The importer of women’s apparel manufactured in China presented false and fraudulent invoices to CBP, showing prices that were discounted by 75 percent, or more, to avoid customs duties. The wholesaler, Notations, which was the importer’s biggest customer, admitted that it aided this scheme by repeatedly ignoring warning signs that the importer’s irregular business practices were highly suggestive of fraud.
Notations has also agreed to implement a written compliance policy that will include measures to educate its employees on identifying red flags for fraud in import transactions, to monitor the conduct of its business partners who act as importers, and to report all potentially fraudulent conduct to CBP.
To be noted in this example, the court was successful in pursuing a case against a company that was not the importer of record, and that is in a foreign location.
This should be a warning to all companies. It is recommended that your written compliance plan include steps to monitor the players in your supply chain. If your suppliers are buying overseas, your procurement team needs to remember that caveat emptor can save them a world of trouble.
WASHINGTON – The United States filed two complaints today seeking imposition of a civil money laundering penalty and to civilly forfeit more than $11 million from companies that allegedly acted as financial facilitators for North Korea, announced U.S. Attorney Channing D. Phillips, Michael DeLeon, Special Agent in Charge of the FBI’s Phoenix Field Office, and Michael J. Anderson, Special Agent in Charge of the FBI’s Chicago Field Office.
The actions, filed in the U.S. District Court for the District of Columbia, represent two of the largest seizures of North Korean funds by the Department of Justice. One complaint seeks $6,999,925 associated with Velmur Management Pte Ltd., a Singapore-based company. The other seeks $4,083,935 from Dandong Chengtai Trading Co. Ltd., also known as Dandong Zhicheng Metallic Material Co., Ltd., a company in Dandong, China.
The lawsuits follow a similar complaint, filed in June 2017, seeking more than $1.9 million from Mingzheng International Trading Limited, a company based in Shenyang, China.
The complaints allege that the companies have participated in schemes to launder U.S. dollars on behalf of sanctioned North Korean entities. According to the complaints, the companies participated in financial transactions in violation of the International Emergency Economic Powers Act (IEEPA), the North Korean Sanctions and Policy Enhancement Act of 2016, and federal conspiracy and money laundering statutes. Today’s complaints are the first filed actions based on the 2016 North Korean Sanctions and Policy Enhancement Act.
“These complaints show our determination to stop North Korean sanctioned banks and their foreign financial facilitators from aiding North Korea in illegally accessing the United States financial system to obtain goods and services in the global market place,” said U.S. Attorney Phillips. “According to the complaints, these front companies are supporting sanctioned North Korean entities, including North Korean military and North Korean weapons programs. Working with our law enforcement partners, we will vigorously enforce vital sanctions laws.”
“The complaints allege that these companies are assisting North Korea in evading sanctions, which is in direct conflict with our national security interests,” said Special Agent in Charge DeLeon, of the FBI’s Phoenix Field Division. “We will continue to use the necessary resources to expose these types of actions and investigate those who utilize the U.S. banking systems for illegal activities.”
U.S. v. Velmur Management Pte., Ltd. (Velmur) and Transatlantic Partners Pte. Ltd. (Transatlantic)
This complaint alleges that Velmur and Transatlantic Partners Pte. Ltd. (Transatlantic) laundered United States dollars on behalf of sanctioned North Korean banks that were seeking to procure petroleum products from JSC Independent Petroleum Company (IPC), a designated entity. The complaint also seeks a civil monetary penalty against Velmur and Transatlantic for prior sanctions and money laundering violations related to this scheme.
According to the complaint, designated North Korean banks use front companies, including Transatlantic, to make U.S. dollar payments to Velmur. The complaint relates to funds that were transferred through four different companies and remitted to Velmur to wire funds to JSC Independent Petroleum Company (IPC), a Russian petroleum products supplier. On June 1, 2017, the Department of the Treasury’s Office of Foreign Asset Controls (OFAC) designated IPC. The designation noted that IPC had a contract to provide oil to North Korea and reportedly shipped over $1 million worth of petroleum products to North Korea.
The United Nations Panel of Experts reported in 2017 on the methods used by North Korean banks to evade sanctions and continue to access the international banking system. Specifically, despite strengthened financial sanctions, North Korean networks are adapting by using greater ingenuity in accessing formal banking channels. This includes maintaining correspondent bank accounts and representative offices abroad which are staffed by foreign nationals making use of front companies. These broad interwoven networks allow the North Korean banks to conduct illicit procurement and banking activity.
An FBI investigation revealed that Velmur’s and Transatlantic’s activities mirror this money laundering paradigm. Specifically, companies identified in the complaint and Transatlantic act as front companies for designated North Korean banks.
The government is seeking to forfeit $6,999,925 that was wired to Velmur in May 2017. The U.S. dollar payments, which cleared through the U.S., are alleged to violate U.S. law, because the entities were surreptitiously making them on behalf of the designated North Korean Banks, whose designation precluded such U.S. dollar transactions. The government also is seeking imposition of a monetary penalty commensurate with the millions of dollars allegedly laundered by Velmur and Transatlantic.
U.S. v. Dandong Chengtai Trading Co., Ltd. (Dandong Chengtai), also known as Dandong Zhicheng Metallic Material Co., Ltd.
This complaint alleges that Dandong Chengtai and associated front companies controlled by Chi Yupeng, a Chinese national, comprise one of the largest financial facilitators for North Korea. According to the complaint, Dandong Chengtai conspired to evade U.S. economic sanctions by facilitating prohibited U.S. dollar transactions through the United States on behalf of the North Korean Workers’ Party, a sanctioned entity.
The complaint further alleges that the North Korean government relies on exports of coal as its primary means of obtaining access to foreign currency, and that the North Korean military controls the amount of coal produced and its subsequent export. The North Korean government uses proceeds of coal sales to fund its weapons of mass destruction program and missile programs. Coal generates more than $1 billion in revenue per year for North Korea. The investigation revealed that Dandong Chengtai is one of the largest importers of North Korean coal in China, and has continued to engage in illicit U.S. dollar transactions related to its coal sales to benefit North Korea.
The complaint alleges that Dandong Chengtai facilitated wire transfers denominated in U.S. dollars for purchases of goods that are well outside the scope of a mineral trading company. Financial records reveal that purchases of bulk commodities such as sugar, rubber, petroleum products, and soybean oil, among others, were in fact destined for North Korea.
As reported in findings by the Treasury Department and the United Nations Panel of Experts, North Korean financial facilitators frequently establish and maintain offshore U.S. dollar accounts for the purposes of remitting wire transfers denominated in U.S. dollars on behalf of sanctioned North Korean entities. These broad interwoven networks allow sanctioned North Korean entities to conduct illicit procurement and banking activity.
The government is seeking to forfeit $4,083,935 that Dandong Chengtai wired on June 21, 2017 to Maison Trading, using their Chinese bank accounts. The investigation revealed that Maison Trading is a front company operated by a Dandong Chengtai employee. These U.S. dollar payments, which cleared through the United States, are alleged to violate U.S. law, because the recent North Korean sanctions law specifically barred U.S. dollar transactions involving North Korean coal and the proceeds of these transactions were for the benefit of the North Korea Worker’s Party, whose designation precluded such U.S. dollar transactions.
This case relates to a previously unsealed opinion from Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia, which found that probable cause existed to seize funds belonging to Dandong Chengtai.
The claims made in the complaints are only allegations and do not constitute a determination of liability.
The FBI’s Phoenix Field Office is investigating the case involving Velmur Management Pte Ltd. and Transatlantic Partners Pte., Ltd. The FBI’s Chicago Field Office is investigating the case involving Dandong Chengtai Trading Co. Ltd. Both investigations are being supported by the FBI Counterproliferation Center.
Assistant U.S Attorneys Arvind K. Lal, Zia M. Faruqui, Christopher B. Brown, Deborah Curtis, Ari Redbord, and Brian P. Hudak, all of the U.S. Attorney’s Office for the District of Columbia, are prosecuting both cases. Paralegal Specialist Toni Anne Donato and Legal Assistant Jessica McCormick are providing assistance.
PLANO, Texas — A 62-year-old North Texas man pleaded guilty Thursday to federal violations of conspiring to smuggle and illegally export to China and Russia circuits used in space and military programs.
This guilty plea was announced by Acting U.S. Attorney Brit Featherston, Eastern District of Texas, and Acting Assistant Attorney General for National Security Dana J. Boente. This case is being investigated by the Dallas and Denver offices of U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI), the FBI, the Department of Commerce’s Bureau of Industry and Security’s Office of Export Enforcement, and the Department of Defense’s Defense Criminal Investigative Service.
Peter Zuccarelli, from Plano, Texas, pleaded guilty to conspiring to smuggle and illegally export from the U.S., radiation-hardened integrated circuits (RHICs) for use in the space programs of China and Russia, in violation of the International Emergency Economic Powers Act (IEEPA). He entered his guilty plea Aug. 3 before U.S. Magistrate Judge Kimberly Priest-Johnson.
Zuccarelli pleaded guilty to engaging in a conspiracy to smuggle and illegally export from the U.S. items subject to IEEPA, without obtaining licenses from the Department of Commerce. According to the allegations contained in the information filed against Zuccarelli and statements made in court filings and proceedings, including the Aug. 3 guilty plea:
Between about June 2015 and March 2016, Zuccarelli and his co-conspirators agreed to illegally export RHICs to China and Russia. RHICs have military and space applications, and their export is strictly controlled;
In furtherance of the conspiracy, Zuccarelli’s co-conspirator received purchase orders from customers seeking to purchase RHICs for use in China’s and Russia’s space programs. Zuccarelli received these orders from his co-conspirator, as well as payment of about $1.5 million to purchase the RHICs for the Chinese and Russian customers. Zuccarelli placed orders with U.S. suppliers, and used the money received from his co-conspirator to pay the U.S. suppliers. In communications with the U.S. suppliers, Zuccarelli certified that his company, American Coating Technologies was the end user of the RHICs, knowing that this was false. Zuccarelli received the RHICs he ordered from U.S. suppliers, removed them from their original packaging, repackaged them, falsely declared them as “touch screen parts,” and shipped them out of the U.S. without the required licenses. He also attempted to export what he believed to be RHICs. In an attempt to hide the conspiracy from the U.S. government, he created false paperwork and made false statements.
At sentencing, Zuccarelli faces a maximum statutory term of five years imprisonment and a maximum fine of $250,000. The maximum statutory sentence is prescribed by Congress and is provided here for informational purposes. If convicted of any offense, the defendant’s sentence will be determined by the court after considering the advisory Sentencing Guidelines and other statutory factors. A sentencing hearing will be scheduled after the U.S. Probation Office completes a presentence investigation.
This case is being prosecuted by the U.S. Attorney’s Office for the Eastern District of Texas together with the Counterintelligence and Export Control Section of the Justice Department’s National Security Division.
Yesterday, a federal jury convicted the chairman of a real estate development company for his role in a scheme to bribe United Nations ambassadors to obtain support to build a conference center in Macau that would host, among other events, the annual United Nations Global South-South Development Expo.
Acting Assistant Attorney General Kenneth A. Blanco of the Justice Department’s Criminal Division, Acting U.S. Attorney Joon H. Kim of the Southern District of New York, Assistant Director in Charge William F. Sweeney, Jr. of the FBI’s New York Field Office and Chief Don Fort of Internal Revenue Service Criminal Investigation (IRS-CI) made the announcement.
After a four week trial, Ng Lap Seng, a/k/a “David Ng,” 69, of Macau, China, was convicted of two counts of violating the Foreign Corrupt Practices Act, one count of paying bribes and gratuities, one count of money laundering and two counts of conspiracy. No sentencing date has been set.
“The defendant’s corrupt activities were all the more egregious and shameful as he tried to hide his bribes as philanthropy,” said Acting Assistant Attorney General Blanco. “Corruption is a disease that has a corrosive effect on the rule of law everywhere and harms good people throughout the world. The Department is steadfast in its mission to aggressively investigate and prosecute bribery in all its forms, and vigorously protect the rule of law.”
“In his unbridled pursuit of even greater personal fortune, billionaire Ng Lap Seng corrupted the highest levels of the United Nations,” said Acting U.S. Attorney Kim. “Through bribes and no show jobs, Ng turned leaders of the league of nations into his private band of profiteers. Ng’s journey from a Macau real estate mogul to convicted felon should serve as a cautionary tale to all tempted to follow his path. If you bring corruption to New York – whether to the State Capitol in Albany or to the halls of the U.N. General Assembly – your journey may very well end in a Manhattan federal courtroom, with a unanimous jury announcing your guilt.”
“Ng’s bribery scheme began at the intersection where business and intergovernmental matters overlap,” said Assistant Director in Charge Sweeney, Jr. He may have thought this was a good place to start, but it’s doubtful this was the ending he had in mind. This case is nothing more than an example of corruption in its purest form, and we’ve proven once again that no individual or organization is powerful enough to be immune from prosecution.”
“Today’s conviction is a result of untangling a global labyrinth of complex financial transactions used by Seng to facilitate bribes to foreign officials,” said Chief Fort. “IRS-CI has become a trusted leader in pursuit of those who use corruption as their business model to circumvent the law. CI is committed to maintaining fair competition, free of corrupt practices, through a dynamic synthesis of global teamwork and our robust financial investigative talents.”
According to the evidence presented at trial, Ng, the chairman of the Sun Kian Ip Group, conspired with and paid bribes to Francis Lorenzo, a former UN Ambassador from the Dominican Republic, and John W. Ashe, the late former Permanent Representative of Antigua and Barbuda to the UN and the 68th President of the UN General Assembly (“UNGA”). With the assistance of Jeff C. Yin, an accountant and co-conspirator who worked with Ng and others and previously pleaded guilty, Ng orchestrated a scheme with the principal objective of obtaining the formal support of the UN for a multi-billion dollar facility that Ng hoped to build in Macau using the Sun Kian Ip Group (the “Macau Conference Center”). Ng wanted the Macau Conference Center to serve as a location for meetings, discussions, forums, and other events associated with the UN. In particular, he wanted it to serve as the permanent home of the annual “Global South-South Development Expo,” which is run by the UN Office for South-South Cooperation, and is hosted in a different country or city every year.
The trial evidence further showed that Ng bribed Ambassador Ashe and Ambassador Lorenzo (together, the “Ambassadors”) in exchange for their agreement to use their official positions to advance Ng’s interest in obtaining formal UN support for the Macau Conference Center. As the evidence demonstrated at trial, Ng paid the Ambassadors in a variety of forms. For example, Ng appointed Ambassador Lorenzo as the President of South-South News, a New York-based organization — funded by Ng — which described itself as a media platform dedicated to advancing the implementation of the UN’s Millennium Development Goals, a set of philanthropic goals. Ng provided bribe payments to Ambassador Lorenzo through South-South News by transmitting payments from Macau to a company in the Dominican Republic affiliated with Ambassador Lorenzo’s brother (the “Dominican Company”). Through South-South News, Ng also made payments to Ambassador Ashe, including to Ambassador Ashe’s wife, who was paid in her capacity as a “consultant” to South-South News, and to an account that Ambassador Ashe had established, purportedly to raise money for his role as President of UNGA. Ng also provided bribes through cash and wire payments to the Ambassadors.
According to the trial evidence, one of the actions that the Ambassadors took in exchange for bribe payments, to advance Ng’s objectives, was to submit an official document to the then-UN Secretary-General in support of the Macau Conference Center (the “UN Document”). The UN Document claimed that there was a need to build the Macau Conference Center to support the UN’s global development goals. Ambassador Ashe, aided by Ambassador Lorenzo, initially submitted the UN Document to the UNGA in or about late February 2012. More than a year later, at Ng’s behest, the Ambassadors revised the UN Document to refer specifically to Ng’s company, the Sun Kian Ip Group, as a partner in the Macau Conference Center project. The UN Document requested that the Secretary-General circulate the UN Document “as a document of the sixty-sixth session of the General Assembly,” under a specific item of the official UNGA agenda. The Secretary-General followed this request, thereby making the UN Document an official part of the UNGA record.
Five other defendants have been charged in this matter. Co-conspirators Lorenzo, Yin and Heidi Hong Piao have pleaded guilty and are awaiting sentencing. Shiwei Yan has pleaded and was sentenced to 20 months in prison. Co-defendant Ashe passed away in 2016 and the charges against him were dismissed.
This case was investigated by the FBI and IRS-CI. Trial Attorney David A. Last of the Criminal Division’s Fraud Section and Assistant U.S. Attorneys Daniel C. Richenthal, Janis M. Echenberg and Douglas S. Zolkind of the Southern District of New York are prosecuting the case.
The Criminal Division’s Fraud Section is responsible for investigating and prosecuting all FCPA matters. Additional information about the Justice Department’s FCPA enforcement efforts can be found at www.justice.gov/criminal/fraud/fcpa.
Guan Zong Chen (“Graham Chen”), a Chinese national was arraigned today in federal court in Boston, Massachusetts on charges that he led a conspiracy to illegally export (smuggle) $700,000 worth of wildlife items made from rhinoceros horn, elephant ivory and coral from the United States to Hong Kong. Chen was arrested last year when he traveled from China to Australia and today’s hearing was his first court appearance on an indictment returned by a Boston grand jury in 2015 and unsealed in anticipation of the hearing.
According to the eight-count indictment, Chen purchased the wildlife artifacts at U.S. auction houses located in California, Florida, Ohio, Pennsylvania, New York and Texas. He conspired with another Chinese national, a recent college graduate in China to travel to the United States to pick up the purchased items and either hand carry or arrange for them to be mailed to another co-conspirator that owned a shipping business in Concord, Massachusetts. The shipper then repacked the wildlife items and exported (smuggled) them to Hong Kong with documents that falsely stated their contents and value and without obtaining required declarations and permits. In April 2014, Chen visited the United States and visited the shipper in Concord, Massachusetts. During the visit with the shipper, CHEN instructed the shipper to illegally export (smuggle) a sculpture made from elephant ivory to Hong Kong on Chen’s behalf and falsely declared it to be made of wood and worth $50.
The unsealing of the indictment and court appearance were was announced today by Acting Assistant Attorney General Jeffrey H. Wood of the Justice Department’s Environment and Natural Resources Division and Acting U.S. Attorney William D. Weinreb of the District of Massachusetts. In announcing the case today, Acting Assistant Attorney General Wood and Acting U.S. Attorney Weinreb expressed their appreciation to the Australian Federal Police and the Australian Attorney-General’s Department for their help in apprehending Chen and extraditing him to the United States.
Trade in rhinoceros horn, elephant ivory and coral have been regulated since 1976 under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a treaty signed by over 175 countries around the world to protect fish, wildlife, and plants that are or may become imperiled due to the demands of international markets. Animals listed under CITES cannot be exported from the United States without prior notification to, and approval from, the U.S. Fish & Wildlife Service.
was apprehended as part of Operation Crash, an ongoing effort by the Department of the Interior’s Fish and Wildlife Service, in coordination with the Department of Justice to detect, deter, and prosecute those engaged in the illegal killing of and trafficking in protected species including rhinoceros and elephants.
An indictment contains allegations that crimes have been committed. A defendant is presumed innocent until proven guilty beyond a reasonable doubt.
The investigation is continuing and is being handled by the U.S. Fish & Wildlife Service’s Office of Law Enforcement and the Justice Department’s Environmental Crimes Section, with assistance from the U.S. Attorney’s Office for the District of Massachusetts and support on the extradition from DOJ’s Office of International Affairs and the U.S. Marshals Services in the District of Massachusetts. The government is represented by Senior Litigation Counsel Richard A. Udell and Trial Attorney Gary N. Donner of the Justice Department’s Environmental Crimes Section of the Environment and Natural Resources Division.
CHICAGO — A 30-year employee of a McHenry County manufacturing firm stole proprietary information from the company while planning to move to China to begin work for a rival firm, according to an indictment returned in federal court in Chicago.
On Sept. 13, 2015, ROBERT O’ROURKE allegedly downloaded electronic data belonging to his employer, a Woodstock-based manufacturer of cast-iron products. At the time, O’Rourke had already accepted a new job with a rival firm in Jiangsu, China, according to the indictment. Two days later he officially resigned from the Woodstock company, the indictment states. The following week O’Rourke packed up the proprietary information and went to O’Hare International Airport in Chicago to board a flight to China, the indictment states. Federal authorities intervened and seized the stolen electronic data, along with stolen paper documents, before O’Rourke traveled to China to begin work for the new firm.
The 13-count indictment was returned Wednesday in U.S. District Court in Chicago. It charges O’Rourke, 57, of Lake Geneva, Wisc., with theft of trade secrets. Arraignment is set for July 25, 2017, at 10:15 a.m., before U.S. District Judge Andrea R. Wood in Chicago.
The indictment was announced by Joel R. Levin, Acting United States Attorney for the Northern District of Illinois; and Michael J. Anderson, Special Agent-in-Charge of the Chicago office of the Federal Bureau of Investigation.
According to the charges, O’Rourke worked for the Woodstock company since 1984, holding the positions of plant metallurgist, quality assurance manager and salesperson. He also helped the company develop international business in, among other places, China, the indictment states. In December 2013, O’Rourke allegedly began discussions with a Chinese firm to take a similar job there. After several months of discussions and negotiations, O’Rourke accepted the position of Vice President at the Chinese company, the indictment states.
O’Rourke initially advised the Woodstock company on Aug. 12, 2015, that he intended to resign, according to the indictment. At that time, O’Rourke did not mention that he was negotiating employment with the Chinese firm, and he continued to work for the Woodstock company for another month, the indictment states. During that month he purchased his plane ticket to China and stole the proprietary trade secrets, the charges state.
The indictment does not identify the name of the Woodstock company or the Chinese firm.
The public is reminded that an indictment is not evidence of guilt. The defendant is presumed innocent and entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.
Each count of the indictment is punishable by a maximum penalty of ten years in prison. If convicted, the Court must impose a reasonable sentence under federal statutes and the advisory U.S. Sentencing Guidelines.
The government is represented by Assistant U.S. Attorney Shoba Pillay.
If you ever wanted to sell a student on pursuing a career in antitrust because of the interesting possibilities, Brent Snyder’s career (which is far from over) would be a good case in point. Mr. Snyder graduated with Honors from the University of Texas School of Law, where he was an Associate Editor of the Texas Law Review. After completing a federal judicial clerkship, he began practicing as a private commercial litigator and in 2001 became a partner at Perkins Coie, a large Seattle law firm. Mr. Snyder joined the Antitrust Division United States Department of Justice in 2003. In June 2017 Mr. Snyder stepped down from the Antitrust Division and will be heading to Hong Kong. On June 19, 2017, the Hong Kong Competition Commission announced the appointment of Mr. Snyder as its next Chief Executive Officer (CEO) for a term of three years commencing 4 September 2017 (here).
Mr. Snyder had a remarkably successful career with Antitrust Division. He started in 2003 as a trial attorney. He was involved, both as a trial attorney and as a supervisor, in many successful cartel investigations and prosecutions. He was part of the team that conducted the TFT-LCD international cartel investigation, which culminated in a conviction and a $500 million fine against AU Optronics. Several AUO executives were also convicted and sentenced to lengthy prison terms. From 2013 until his departure, Mr. Snyder served as the Deputy Assistant Attorney General for Criminal Enforcement overseeing all of the Division’s criminal investigations, prosecutions, leniency and other policy work.
Mr. Snyder is known to his friends as someone whose career has always focused on positions that would be interesting, provide new challenges and allow him to make a meaningful contribution. On these scores, his going to Hong Kong is not surprising. Hong Kong has a relatively new but robust competition enforcement regime. Full enforcement of the Hong Kong Competition Ordinance began only a little over 18 months ago and the Competition Commission has had positive results already. Some of these results are outlined in the Commission’s March 2017 newsletter, “Competition Matters.” The Competition Commission also has a very helpful website.
The Hong Kong Competition Commission has been very innovative during its short history. The Commission created an educational video on “Fighting Bid Rigging Cartels,” which can be viewed here on You Tube. The Commission’s “Fighting Bid-rigging Cartels” Campaign was named a winner in the category “Engaging through results: Successful experience in planning, implementing and monitoring advocacy strategies” in the Competition Advocacy Contest organised by the International Competition Network (ICN) and the World Bank Group (here).
Mr. Snyder will bring a great deal of valuable experience and perspective to the Hong Kong Competition Commission. Before heading off to Hong Kong, Mr. Snyder kindly agreed to answer a few questions about his experiences to date.
Q. Can you talk about an experience you had in the Antitrust Division that might be your fondest memory?
First, thank you for the opportunity to contribute to Cartel Capers! Your blog has been a great and influential addition to the antitrust landscape and facilitates discussion and thinking on important topics in our field. I appreciate your interest and am happy to answer your questions.
I suppose I should have an easy answer to this question, but it is hard to pick from so many great experiences over the years. Anyone who has worked in the Division understands what a special place it is and the exciting things its attorneys get to do.
Running through the Honolulu airport to serve a grand jury subpoena on someone trying to hightail it out of the country, the excitement of trial wins, a karaoke celebration party with the AUO team, kayaking on a bio-luminescent bay in Puerto Rico with the Peake trial team, any number of memorable drop-in interviews, planning a successful undercover operation, and, most recently, a surprise farewell party complete with a hula dancer, ukulele player and Aloha-attired Division friends (people seem to think I have a thing for Aloha shirts for some reason ?) all come to mind.
They all have one thing in common — that I was fortunate to be part of great teams. I can’t separate any memory from the fantastic people with whom I shared the experiences and accomplishments. Experiencing those things with people I like and respect are my fondest memories. I was just so fortunate to work for and with talented, hardworking, dedicated public servants who also are fun and have a great sense of humor (and/or high tolerance for mine). Anyone who knows me knows that I value that last part especially highly!
Q. You’ve had several different positions in the Division, starting out as a trial attorney, rising to Criminal Deputy and even being Acting Assistant Attorney General for a time. For the trial staff, what do you think are the biggest challenges they face today in cartel enforcement?
It is a great time to be a Trial Attorney because the Division has a number of really exciting investigations and plenty of cases going to trial. But, as always, there are challenges. I think some of the significant ones are:
Keeping up with the work, especially while the Division has so many cases in litigation, which pulls resources away from investigations;
The complexity of several of the schemes and industries under investigation, such as LIBOR and the foreign exchange spot market;
Coordinating and harmonizing investigations with an increasingly greater number and variety of enforcement and regulatory agencies, especially non-competition enforcement agencies; and
Keeping up with ever evolving technologies that cartelists are using to communicate and that are difficult to detect and penetrate.
I have been proud to see the Division’s attorneys overcome every challenge with determination and dedication and fully expect them to have a continued track record of great success in the future.
Q. Overall, what do you think is the biggest challenge facing the Antitrust Division in its primary mission of cartel enforcement?
You raise one of them below — keeping the incentive strong to seek leniency.
Another challenge is that the Division has lost many of its most experienced attorneys through retirements, office closures, and other attrition over the past several years. Although the Division was able to hire a large number of exceptionally talented attorneys, the lost experience cannot immediately be replicated. The good news is that this challenge should be short term in nature. Recent trials and investigations have provided opportunities for the new attorneys to get tremendous experience, and the Division is on its way to having a really deep pool of accomplished prosecutors to go along with a skilled group of managers.
Finally, as I mentioned above, there is a much more crowded enforcement landscape today than there was even a few years ago. I am referring less to the emergence of new competition enforcers than to investigations involving a greater number and variety of other domestic and foreign enforcement agencies and regulators. This results in greater harmonization challenges, and these investigations no doubt complicate the leniency calculus for companies that may face non-antitrust exposure from those regulators and enforcers for the same or related conduct.
Q. Is there any one area of international enforcement harmonization or cooperation you’d hope to see improvement in among the world’s cartel enforcement agencies?
I think the quality and quantity of international cooperation is better than it has ever been. The Antitrust Division now routinely communicates and coordinates with enforcement agencies that it had little or no interaction with just a few years ago. I think this is testament to the rate at which agencies around the world are maturing and becoming involved in international investigations.
If there is one area that I would like to see improved, it would be in the area of witness interviews. As I have said at other times, I think enforcers can do a better and more efficient job of coordinating the timing of and approach to witness interviews among enforcement agencies. This would not only benefit our investigations but also be more cost effective and efficient for the witnesses and cooperating companies.
Q. Do you think “leniency” has lost some of its appeal to potential cooperators? If so, can/should anything be done about that?
I don’t think leniency has lost its appeal. For a company confronted with exposure to a cartel offense and the resulting large fines, civil liability, and incarceration for executives, it is still a great opportunity. And, I believe that companies and their counsel still see it as one.
But, as I mentioned above, the decision to seek leniency is undoubtedly more complicated than it has ever been as a result not only of the proliferation of competition enforcement agencies but also the more frequent involvement of other types of enforcement agencies and regulators in parallel investigations of the same conduct. The proliferation of enforcement agencies increases the potential cost and burden of seeking leniency, and the involvement of other enforcement agencies and regulators increases the risk of liability not covered by leniency.
I think the expense and burden of multi-jurisdictional cartel investigations can be addressed through greater coordination and efficiency enhancements among competition enforcement agencies. I think that harmonizing leniency with non-competition enforcement agencies and regulators presents greater challenges, but I believe it will become easier as they have more experience with leniency and see its results. I saw improvements in this area during my years as DAAG.
Finally, the best way to make leniency attractive is to prove you can and will detect and prosecute cartels even without a leniency applicant. The Antitrust Division has an excellent track record of doing so, and cartelists who choose not to seek leniency face a real risk of detection and prosecution.
Q. As mentioned above with “Fighting Bid Rigging Cartels” video the Hong Kong Competition Commission has been innovative and active in public outreach. Do you think that kind of outreach can be duplicated in the United States?
I have been really impressed by innovative public outreach efforts in other jurisdictions, such as Hong Kong, and have often wondered if they can be replicated here. Unfortunately, I am doubtful that they can be replicated here because the U.S. is so large and the channels for communicating to the general population are diffuse or prohibitively expensive.
Nonetheless, the Antitrust Division has prioritized making public outreach more systematic and diverse than in the past. I don’t think we’ll see any national ad campaigns or public service announcements from the Division, but I do think it will be finding ways to get in front of a greater number of groups and constituents than in the past.
I think this outreach is very important not only from the perspective of developing investigative leads but also to educate the public regarding the illegality of cartel offenses. In 2015, Prof. Andreas Stephan of the University of East Anglia published an interesting survey of public attitudes to price fixing in the UK, Germany, Italy, and the U.S. which showed that the U.S. lags behind the other jurisdictions in knowledge that cartel conduct is illegal. Outreach can certainly help with this.
Q. You no doubt had many possible very lucrative opportunities upon leaving the Department of Justice. Why did you chose to go to work with the Hong Kong Competition Commission?
I thought it was an incredible and interesting opportunity to go from one of the most established and experienced agencies in the world to one of the newest. You’ve already noted that the Hong Kong Competition Commission has shown itself to be innovative and thoughtful during its relatively short existence. I am excited to get to contribute to what Stanley Wong, Rose Webb, and others have already begun to build there and hope to make good use of my experience at the Antitrust Division.
It should come as no surprise that I think the Antitrust Division is the finest competition enforcement agency in the world, but I jokingly told Acting Assistant Attorney General Andrew Finch that we’re going to try to knock them back to second best. ?
Company Allegedly Violated Sanctions by Laundering U.S. Dollar Transactions on Behalf of North Korea’s Foreign Trade Bank
WASHINGTON – The United States has filed a complaint to civilly forfeit $1,902,976 from Mingzheng International Trading Limited (Mingzheng), a company based in Shenyang, China. The complaint alleges that Mingzheng is a front company that was created to launder United States dollars on behalf of sanctioned North Korean entities.
According to the complaint, Mingzheng conspired to evade U.S. economic sanctions by facilitating prohibited U.S. dollar transactions through the United States on behalf of the Foreign Trade Bank, a sanctioned entity in the Democratic People’s Republic of Korea (North Korea) and to launder the proceeds of that conduct through U.S. financial institutions.
The forfeiture action was announced today by U.S. Attorney Channing D. Phillips and Michael DeLeon, Special Agent in Charge of the FBI’s Phoenix Field Office.
The action represents one of the largest seizures of North Korean funds by the Department of Justice.
“This complaint alleges that parties in China established and used a front company to surreptitiously move North Korean money through the United States and violated the sanctions imposed by our government on North Korea,” said U.S. Attorney Phillips. “Sanctions laws are critical to our national security and foreign policy interests, and this case demonstrates that we will seek significant remedies for those companies that violate them.”
“The FBI has dedicated substantial resources to investigate complex illegal monetary transactions involving foreign adversaries. This specific case has significant national security implications,” said Special Agent in Charge DeLeon. “The men and women of the FBI’s Phoenix Field Division worked diligently to identify the illegal transactions. We hope this sends a strong message to those who utilize US banking systems for illegal activities.”
The complaint was filed on June 14, 2017, in the U.S. District Court for the District of Columbia. According to the complaint, Mingzheng is owned by a Chinese national and is based in Shenyang, China. Mingzheng allegedly operated as a front company for a foreign-based branch of the North Korea-based Foreign Trade Bank (FTB). In March 2013, the U.S. Treasury Department designated the Foreign Trade Bank as a sanctioned entity pursuant to the Weapons of Mass Destruction Proliferators Sanctions Regulations. The designation noted that the Foreign Trade Bank is a state-owned bank, and “acts as North Korea’s primary foreign exchange bank.” The designation further noted that North Korea uses the Foreign Trade Bank to facilitate millions of dollars in transactions on behalf of actors linked to its proliferation network.
The United Nations Panel of Experts reported in 2017 as to how North Korean banks have been able to evade sanctions and continue to access the international banking system. Specifically, despite strengthened financial sanctions, North Korean networks are adapting by using greater ingenuity in accessing formal banking channels. This includes maintaining correspondent bank accounts and representative offices abroad, which are staffed by foreign nationals making use of front companies. These broad interwoven networks allow the North Korean banks to conduct illicit procurement and banking activity.
An FBI investigation revealed that Mingzheng’s alleged activities mirror this money laundering paradigm. Specifically, Mingzheng acts a front company for a covert Chinese branch of the Foreign Trade Bank. This branch is operated by a Chinese national who has historically been tied to the Foreign Trade Bank.
The government is seeking to forfeit $1,902,976 that was transacted in October and November of 2015 by Mingzheng, via wire transfers, using their Chinese bank accounts. These U.S. dollar payments, which cleared through the United States, are alleged to violate U.S. law, because Mingzheng was surreptitiously making them on behalf of the Foreign Trade Bank, whose designation precluded such U.S. dollar transactions.
The claims made in the complaint are only allegations and do not constitute a determination of liability.
The FBI’s Phoenix Field Office is investigating the case. Assistant U.S Attorneys Arvind K. Lal, Zia M. Faruqui, Christopher B. Brown, Deborah Curtis and Brian P. Hudak are prosecuting the case, with assistance from Paralegal Specialist Toni Anne Donato.
I wanted to pass on some information about another great ABA Antitrust Section program“Antitrust In Asia.” The program is in Hong Kong, China on June 2-3, 2016, but early registration savings end on May 12. The faculty includes enforcers from China, Competition Commission of Hong Kong, Competition Commission of India, Japan Fair Trade Commission, Korea Fair Trade Commission, Competition Commission of Singapore, and the U.S. DOJ & FTC.
Antitrust enforcement in Asia has taken a prominent and increasingly important place in the global competition ecosystem. This conference features leading enforcers, academics, and practitioners who will address key developments across the Asia-Pacific region, as well as provide conference attendees unique opportunities to interact with top policy-makers. Here is a link to the full agenda, which includes: Merger Review, Enforcement Directions in Asia, Abuse of Dominance, and Private Actions. The conference also features a “Roundtable with Enforcers From China’s AML Agencies” (Ministry of Commerce (MOFCOM), National Development and Reform Commission (NDRC) and State Administration for Industry and Commerce (SAIC)). While the panels are always great, even better are the informal encounters with the enforcers, corporate counsel and other colleagues who attend the event.
Unfortunately, I won’t be attending. I blew my modest international travel budget on the ABA Cartel Workshop in Tokyo, Japan in February. Here is a short Cartel Caper blog post from that conference and a link to a conference follow-up article I wrote for Law 360 (here). If you do attend the Antitrust in Asia conference and would like to post a blog entry about it, I’d be happy to publish it. I am always looking to expand the international content of the blog.