Guest Post: U.S. Constitutional Principles Do Not Preclude Burden-Shifting or Illicit Enrichment Offenses

Peter Leasure, Ph.D. candidate in criminology and criminal justice at the University of South Carolina, contributes the following guest post:

It is well known that corrupt kleptocrats often transfer enormous sums of money from their countries. As a result, there has been a growing emphasis on attempts to freeze, seize, and return stolen assets to their jurisdiction of origin. However, countries vary in the legal mechanisms they have to achieve these objectives. One common fixture of many of these legal mechanisms is the requirement that the assets (or the capital used to acquire them) be traced to a predicate offense. However, meeting this requirement can sometimes be difficult, which hinders asset recovery proceedings.

To address this problem, some jurisdictions, such as France, have adopted a burden-shifting approach. Under the relevant provisions of the French Criminal Code, officials have the burden to account for the lavish assets they have acquired once claims of corruption arise. A similar sort of burden-shifting takes place under so-called “illicit enrichment” or “unexplained wealth” statutes. Under such statutes, a government official can be criminally liable if the official has substantial assets that he or she cannot adequately explain. In other words, once the government proves that the corrupt official has assets grossly disproportionate to his or her official salary, the burden shifts to the defendant to prove that the assets have a legitimate origin. Many countries have adopted statutes of this sort. Moreover, some international anticorruption conventions, such as the Inter-American Convention Against Corruption (IACAC), expressly call for the adoption and enforcement of such laws.

The U.S. takes a different approach. The U.S. made this clear in filing a reservation to the IACAC’s illicit enrichment section (Article IX), in which it stated that the offense of illicit enrichment set forth in the convention “places the burden of proof on the defendant, which is inconsistent with the United States constitution and fundamental principles of the United States legal system.”

But is it always the case that the government bears the burden of proof in the U.S.? In fact, it is not. There are numerous examples of areas from U.S. criminal law where burdens are shifted from the government to the defendant. Continue reading

Lessons from a Pathbreaking DfID Anticorruption Project in Tanzania

Britain’s Department for International Development is funding thoughtful, ambitious projects in Ghana, Tanzania, and Uganda to help those governments step up the enforcement of national anticorruption laws.  What makes the three thoughtful is their recognition that improving anticorruption law enforcement requires the simultaneous strengthening of the entire criminal justice chain – from the entities that turn up possible corruption violations to the agencies which investigate these leads to prosecution services and courts – together with measures to improve  collaboration among them.  What makes the three projects ambitious is that they provide assistance from one end of the chain to another;  building capacity in a single agency can be challenge, building it in several simultaneously even more so.

Yet if developing countries are to do better at catching, prosecuting, and convicting corrupt officials and those who corrupt them, more programs like these three, whether donor- or self-funded, are needed.  It does no good to improve the ability of an anticorruption agency to investigate corruption if prosecutors don’t have the skill to present a convincing case.  And no matter how skilled the prosecution, it will be for naught if the courts don’t understand the law or the evidence.

The 4 ½ year, £11.3 million Tanzania project, dubbed “STACA” for Strengthening Tanzania’s Anticorruption Action, was the first of the three DfID projects to tackle the criminal justice chain in one fell swoop, and along with the U4 Anticorruption Resource Center and REPOA, a Tanzanian think-tank, I reviewed its progress at roughly the half- way mark in implementation.  While we trust close study of the review is merited, below I summarize three points that came out of it that I think are particularly critical, both for developing country policymakers looking for ways to enhance the enforcement of their nation’s anticorruption laws and for donor organizations wanting to help them. Continue reading

A Different Kind of Quid Pro Quo: Conditional Asset Return and Sharing Anti-Bribery Settlement Proceeds

In my last couple of posts, I’ve returned to a theme I’ve written about before: My skepticism about claims that the U.S. government either should (as a matter of policy) or must (under UNCAC or other legal obligations) share settlement proceeds in FCPA cases with the governments of the countries where the bribery took place. I’m also skeptical that there’s any obligation on the part of U.S. or other supply-side enforcers to use any of this settlement money to fund NGO-sponsored projects in (or for the benefit of) those countries.

Asset recovery, however, is different. When the U.S. (or some other country) identifies – at its own initiative or pursuant to the request of another government – assets held in the U.S. that have been stolen from a foreign government, my reading of the law (both conventional domestic legal principles and Chapter V of UNCAC) is that the U.S. has an unconditional legal obligation to return those assets to their rightful owner. At times, the U.S. has indicated that, although it has a general policy of returning stolen assets to the governments from which they were stolen, it does not view this as a legal obligation. Rather, the U.S. seems to want to leave open the option, in some cases, of attaching conditions to the return of the assets, or funneling them through NGOs or other bodies, rather than simply turning them over to the claimant government. I understand why the U.S. has taken this position: Returning assets stolen assets to a claimant government with a reputation for pervasive corruption—where it seems highly likely much of the money will be stolen again—seems awfully unappealing, and doubly so in those cases where the government officials who stole the money in the first place, or their family members and cronies, retain their power and influence in the claimant country. Hence the instinct to attach conditions to the return of the assets, or to use the money to fund NGOs rather than simply turn it over to the claimant government. The problem, though, is that I’m hard-pressed to come up with a legal basis (notwithstanding some valiant attempts) for doing anything other than handing over the money.

So, the situation as it stands looks something like this (and I acknowledge simplifying quite a bit to make things a tad neater than they actually are): On the one hand, many developing countries want wealthy countries like the U.S. to share foreign bribery settlement proceeds with the countries where the bribery took place, but for the most part the wealthy countries do not want to do this, and assert—correctly—that they are under no obligation to do this under UNCAC or any other legal instrument. On the other hand, many wealthy countries would like to retain the flexibility to attach conditions to asset return (or to use seized assets to fund NGO programs rather than turning the money over to the governments), but the claimant countries in the developing world assert—correctly—that there is a legal obligation (enshrined in UNCAC) to return stolen assets, without strings attached.

Framing the issue this way suggests a possible compromise. (In the interests of disclosure, I should say that this is not my original idea: It came up in a conversation I had recently with an analyst at an anticorruption NGO, but since I haven’t had the chance to clear it with him, I won’t name the person or organization here.) The trade would go like this: Continue reading

Equity Crowdfunding: Considerations for Anti-Money Laundering Regulation

Equity crowdfunding involves the use of an internet-based platform to market equity shares in a given company to a wide range of potential investors (the “crowd”). The result is financial democratization of sorts – harnessing the power of the crowd to make many small investments instead of relying on large capital infusions from a relatively small number of sophisticated investors. The key to equity crowdfunding is to keep transaction costs low, so that small businesses are able to participate, without sacrificing investor protection. This latter consideration is especially important given the potentially low financial sophistication of the crowd.

In my last post, I discussed how equity crowdfunding could help small and medium-sized enterprises (SMEs) in developing countries overcome corruption-related barriers to accessing finance. Because equity crowdfunding makes use of internet-based platforms, it is particularly useful for cross-border transactions. As a result, SMEs in developing countries that are unable to access finance through traditional means (often because of corruption in domestic capital markets) can use equity crowdfunding platforms to connect with investors outside of their home countries. As with other technology-based tools that have the potential to sidestep the effects of corruption and contribute to economic development, though, there is also reason to be concerned about the opportunities for corruption for which equity crowdfunding could be abused. In particular, equity crowdfunding platforms could be used to facilitate money laundering, in at least two ways: Continue reading

Equity Crowdfunding: A (Partial) Corruption Solution for SMEs

One of the most notorious phenomena in international development is the so-called “missing middle” problem: the scarcity and under-productivity of small and medium sized enterprises (SMEs) in developing countries. Around the world, SMEs can be a leading source of employment and an important driver of innovation. There is a strong positive correlation between the existence of a robust SME sector and high per-capita GDP. Yet in far too many countries, the potential of the SME sector is not being realized.

One cause of SME sector underdevelopment in developing countries is the inability of SMEs to access start-up capital and financing, which can be the “single most robust determinant of firm growth.” SMEs in developing communities face substantial challenges accessing capital, and as a result are often unable to scale or form in the first place. And corruption plays a central role in preventing access to finance among SMEs—by discouraging foreign direct investment, distorting the banking sector, and increasing the costs of equity capital. While corruption poses a significant problem for businesses in many developing countries, SMEs bear the brunt of the harm. Indeed, 70% of SMEs in the developing world cite corruption as a major barrier to their operations.

In the spirit of technological solutions to work around the barriers and distortions created by endemic corruption, equity crowdfunding is emerging as at least a partial solution for SMEs that require capital but are unable to get it because of corruption. Continue reading

Anticorruption Bibliography–June 2016 Update

An updated version of my anticorruption bibliography is available from my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

Corruption in Health Aid: Escaping the Scandal Cycle

William SavedoffAmanda Glassman and Janeen Madan of the Center for Global Development, a Washington-based development policy think tank, originally wrote this post for CGD.  It is reprinted here with permission.

Health aid pays for life-saving medicines, products, and services in the poorest countries in the world. Funding for such uses needs to be smooth and uninterrupted. But when fraud is detected, funds are subject to sudden stops and starts—the result of a sequence of events set off by the scandal cycle in health aid depicted below. We examine this idea and offer ways to escape the cycle in a new CGD policy paper we summarize here.

The Scandal Cycle


To understand the scandal cycle, we looked at four cases of fraud and response involving the World Bank in India, USAID in Afghanistan, the Global Fund in Mali, Djibouti and Mauritania, and European donors in Zambia. While corruption is discovered in different ways, scandals tend to erupt when the press publicizes it or a funder reacts strongly. Once allegations are in the public eye, funders typically react by suspending aid. Then, they work with recipients to create action plans for improving financial management systems, and eventually resume funding.

This scandal cycle is, unfortunately, all too common. In May, the Global Fund published an investigation that tracked down $3.8 million in fraudulent expenditures at Nigeria’s Department of Health Planning, Research & Statistics. The Fund’s executive director issued a statement reaffirming the Fund’s “zero tolerance of corruption” policy, underscoring that the Fund had frozen disbursements to several Nigerian agencies, and calling for reforms to government control measures.

As with the cases we analyzed in our paper, the focus on fraud often comes at the expense of considering the scale of corruption and the impact of disruption on health programs. While $3.8 million is no small number, it represents less than one percent of the $889 million in grants to Nigeria that the Global Fund audited in a companion report on the project. Furthermore, the impact of international support on improving health has been rather large; the Global Fund’s own statement indicates that international support has helped Nigeria reduce deaths from malaria by 62 percent since 2000.

Halting disbursements to health programs can have serious consequences for service delivery, health outcomes, and institutional development. In light of the scale of fraud and the potential health impact, is suspending aid an effective response? And without information on health impact, how would we know?

We argue that funders may be able to escape the scandal cycle—and reduce such disruptions—by paying greater attention to information on program achievements. Currently, funders pay a lot of attention to procedural issues. For example, a 2013 report from the Special Inspector General for Afghanistan Reconstruction (SIGAR) documented weak accounting systems at the Afghan Ministry of Health. Even though the report had no direct evidence of fraud and the health program was successfully delivering services, SIGAR recommended USAID suspend the program.

By contrast, the World Bank’s 2008 Detailed Implementation Review of the Indian health sector not only included evidence of procedural failures, such as bid rigging, but also documented results failures, like continuing high malaria rates and inoperative hospitals. If the World Bank and India had reported these results failures earlier, the cases where corruption was big enough to affect programs would have come to light much sooner.

We think results on service delivery, population health, and institutional development are the key piece of information that could change the dynamics of the scandal cycle. This kind of information can help funders communicate more effectively about why they are deciding to suspend or continue aid, set appropriate standards for when aid should be halted, and establish new funding mechanisms that make it more difficult to divert funds.

We recommend the following three steps to improve funder response:

  1. Communicate using results. When a scandal erupts, communicating the funder’s actions to control or prevent corruption to stakeholders, the media, and the broader public is important. But emphasizing whether health aid programs are achieving intended results is also an essential component of the communications strategy. If a program is achieving results, stakeholders and constituents would better understand a funder’s decision not to suspend aid when a scandal erupts (while investigating abuse and working with the recipient to address the problem).
  2. Differentiate responses by results. In addition to responding to corruption allegations (which typically come from whistleblowers), tracking program results could help funders detect corruption. If a program is falling short of achieving results, corruption might be a contributing factor and an investigation could help determine whether and how much. Moreover, results data would allow funders to determine whether corruption is—or is not—hampering program implementation, and to recalibrate anti-corruption controls accordingly.
  3. Disburse in proportion to results. Where feasible, paying for results in health could help ensure that funds are only paid out when results are achieved. This approach makes it harder to divert funds because payments only occur after the program’s impact is measured. In programs that pay for results, dishonest people can only skim off funds if they have been very efficient at generating impact. In practice, they are likely to simply set their sights elsewhere.

The Scandal Cycle

The Global Fund’s recent statement recognizes the importance of communicating the results of its health grants to Nigeria, but it doesn’t address whether it is helpful to suspend aid over a relatively small amount of fraud or lack of supporting documentation. Our paper encourages funders to incorporate information about program results into their risk management strategies so they can communicate better, detect corruption sooner, and make more considered choices about creating or responding to scandals.

Continue reading

Victim-Compensation Arguments Cut Both Ways

In my last post, I imagined what a frustrated U.S. official might have to say about the ever-increasing drumbeat of demands for the United States to “return” (that is, transfer) the “proceeds of crime” (that is, the fines collected from corporate defendants in Foreign Corrupt Practices Act (FCPA) cases) to the “victim countries” (that is, the governments whose officials took the bribes that gave rise to the FCPA violations). My imaginary rant was deliberately over-the-top, intended to be provocative and to stir up some more honest debate on this topic by cutting through the circumspection and diplomatic niceties that usually accompany pushback against the “give the settlement money to the victim countries” position. In this post, I want to continue on the same general topic, and in the same provocateur’s spirit, by asking the following question:

When (or if) demand-side countries start collecting serious fines against bribe-taking public officials and/or bribe-paying companies, does the logic of compensating “victims” dictate that these countries transfer some of the money they recover to the United States?

At the risk of seeming totally bonkers, I’m going to assert that the answer might well be yes if one accepts the logic for making transfer payments in the other direction (from the U.S. government to the governments of the countries whose officials took the bribes) in FCPA cases. Here’s the argument: Continue reading

A Role for the Courts in Limiting Philippine Political Dynasties

In an earlier post I wrote about Philippine political dynasties, I argued for the adoption of an anti-dynasty law that would bring into effect Article II, Section 26 of the 1987 Philippine Constitution, which states that “[t]he State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.” Since the Philippines gained its independence, political dynasties have dominated national and local government—70% of the last Congress, for example, belonged to a political dynasty. Because these families have maintained an effective oligarchy over the country for decades, they can easily abuse their discretion and commit corrupt acts without consequence.

While the Framers of the 1987 Constitution recognized the danger these elite families posed to fair governance and their propensity to engage in corruption, the Supreme Court has found that the constitutional ban on dynasties is not a self-executing provision. In May 2014, for the first time in history, an anti-dynasty bill made it out of committee and was sponsored before the House plenary. In his final State of the Nation Address, President Noynoy Aquino urged Congress to finally pass an anti-dynasty law. Politicians in Congress, however, have since blocked efforts to pass such a law. By October 2015, the Senate President publicly announced that no anti-dynasty law would be approved before the May 2016 election. Despite my hope that the recent bill would result in a new law at last, this outcome is not surprising. Political dynasties have controlled the majority of Congress for decades, and numerous politicians seeking office in this year’s election would have been prohibited from running if the law had passed.

Now the results of the May election are in, it looks as though Congress will continue to be dominated by dynastic politicians. President-elect Rodrigo Duterte’s stance on political dynasties is currently unclear, although he himself belongs to a political dynasty. Given this, legislative action may simply be out of reach for the time being. One interesting question is whether the courts could intervene to bring the constitutional ban into effect. Doing so would be a radical departure from past practice, and would require rethinking certain core judicial doctrines, but might be nonetheless be legitimate under the circumstances. Continue reading

TNI’s Gold Mine: Corruption and Military-Owned Businesses in Indonesia

The Grasberg Mine, located close to the highest mountain in West Papua, Indonesia, is the world’s largest gold mine and third-largest copper mine. The mine, owned by the corporation Freeport-McMoRan Copper & Gold, has been the site of strings of grave human rights abuses, linked to Indonesia’s own National Armed Forces (Tentara National Indonesia/TNI). TNI’s presence in the territory is ostensibly to protect the mine, and Freeport’s Indonesian subsidiary acknowledges having made payments of as much as US$4.7 million in 2001 and US$5.6 million in 2002 for such government-provided security. A report by Global Witness, however, revealed numerous other payments ranging from US$200 to US$60,000 that Freeport Indonesia allegedly made to individual military officers.

The TNI’s sale of security services to companies like Freeport is only one of the many business ventures conducted by the TNI and its officers. As Human Rights Watch has reported, the Indonesian military has been supplementing its income through both its formally established companies, and through informal and often illicit businesses such as black market dealing. Moreover, the military’s business activities (both lawful and unlawful) are largely shielded from public scrutiny: budgeting for military purposes is generally kept secret, and TNI members generally refuse to answer questions about institutional spending.

Military-owned business in Indonesia are problematic, not only because this private-sector activity impedes military professionalism and distorts the function of the military, but also because it also contributes to crime, human rights abuses, and especially corruption. This problem is greatly compounded by the fact that TNI officers generally enjoy immunity from corruption charges brought by civilian institutions. In fact, the Transparency International’s Defense and Security Program has deemed Indonesia one of the countries most prone to corruption in its defense and security institutions. It is therefore appalling that this issue has not been addressed more seriously by the Indonesian government. Although a 2004 law mandated the transfer of control over TNI businesses to the civilian government within five years, the law did not clearly specify which types of business activities were covered, and this legal loophole enabled the TNI to preserve many of its moneymaking ventures, including TNI’s infamous security services—to say nothing of already-illegal criminal enterprises and illicit corporations. Moreover, despite the five-year timetable in the law, the government has been notably reluctant to enforce the transfer of ownership, making repeated excuses alluding vaguely to the need for the TNI to compensate for the lack of budgeting for security purposes. As a result, despite some efforts to reform the way the TNI is allowed to handle its businesses, military-owned businesses in Indonesia continues to flourish, with the Indonesian people of Indonesia having to pay the price.

The government’s weak response towards the military’s non-compliance with the 2004 law is merely one of the many indicators of how impervious the TNI’s power and seeming impunity. There are factors that contribute to this impunity, along with the corresponding corruption and abuse of power in the operations of military-owned businesses: Continue reading