In late 2023, the DOJ announced the unsealing of an indictment criminally charging: Carl Alan Zaglin (the owner of a Georgia-based manufacturer of law enforcement uniforms and accessories); Francisco Roberto Cosenza Centeno (former Executive Director of the Comité Técnico del Fideicomiso para la Administración del Fondo de Protección y Seguridad Poblacional (TASA) a Honduran governmental entity that procured goods for the Honduran National Police); and Aldo Nestor Marchena (a dual citizen of the U.S. and Peru) for their alleged participation in a scheme to pay and conceal bribes to Honduran government officials to secure contracts to provide uniforms and other goods to the Honduran National Police. (See here for the prior post).

The indictment contained allegations regarding: (i) a $4.8 million uniform contract with TASA; (ii) a $5.6 million uniform contract with TASA; (iii) a $480,000 contract for tear gas launchers and ammunition; and (iv) a bid for a $7.5 million uniform contract with TASA.

Zaglin and Marchena were charged with conspiracy to violate the FCPA’s anti-bribery provisions and Zaglin was charged with substantive violations of the anti-bribery provisions. Zaglin, Marchena and Francisco Roberto Cosenza Centeno (the alleged foreign official) were further charged with conspiracy to commit money laundering and the later two individuals are charged with substantive money laundering offenses and engaging in transactions in criminally derived property.

The trial date was pushed back due to President Trump’s February 2025 Executive Order, but trial is scheduled to begin in August (see here for the prior post).

Recently, Zaglin moved to dismiss the indictment.

In summary fashion the motion states:

“The government has charged Defendant Carl Zaglin with conspiring to commit, and committing, alleged “bribery” pursuant to the Foreign Corrupt Practices Act. However, the Indictment fails to allege facts showing any conduct which meets the legal definition of bribery. Rather, the government alleges conduct which amounts to the payment of gratuities after an action had been performed.

The President of the United States has furthermore explicitly focused on the FCPA and existing enforcement actions under the Act, criticizing enforcement of the FCPA as “overexpansive,” “unpredictable” and “abused.” See Exec. Order No. 14209, 90 Fed. Reg. 9587 (Feb. 10, 2025) (Executive Order). This prosecution for bribery under the FCPA founded on alleged facts which do not constitute bribery amounts to precisely the sort of overexpansive and abusive enforcement of the FCPA condemned by the President in his Executive Order. The charges against Mr. Zaglin in this case fail to state an offense and directly conflict with public policy, and should be dismissed.”

Elsewhere, the motion argues:

“Unless there is an agreement to pay prior to the decision to award any business, a payment made after business has already been obtained or retained constitutes the payment of a gratuity, and is not conduct within the scope of the FCPA. A payment made after business has been obtained or retained cannot influence or induce the award of the business.

The FCPA has never included gratuities within its scope. Congress has never added a gratuities provision to the FCPA in its amendments to the statute. The statute does not refer to “rewards” like the anti-bribery statute for state and local officials at issue in Snyder. See 18 U.S.C. § 666(a). The government’s own, 130-page FCPA “resource guide” furthermore references “gratuities” exactly once, in a footnote, and not in the context of being violative of the FCPA.

The foregoing authorities make clear that the FCPA applies only to bribes and not to gratuities. However, in the event that the Court finds any ambiguity in the breadth of the FCPA, the Court is urged to follow the Supreme Court’s reasoning in Snyder and to interpret its scope narrowly, pursuant to the rule that penal statutes are to be construed “strictly” against the government

[…]

The foregoing facts establish that the Honduran Uniform Contracts were awarded, agreed to and executed before the brokerage agreements to pay commissions were agreed to and any payments made. The Indictment fails to allege any facts showing any agreement between the defendants and any Honduran officials prior to the award or execution of the Uniform Contracts to give anything of value. The government does not allege facts showing any quid pro quo. At most, the Indictment charges an agreement to make payments after an official decision or act has taken place.

Without evidence of any prior agreement to make payments to influence or induce the decision or action, the payments cannot constitute alleged bribes for the purposes of the FCPA, and are similar to gratuities. As in the case of a gratuity, the payments in this case could not have influenced or induced the decision or action by TASA to award the Uniform Contracts to Atlanco for the reason that the contracts had already been awarded prior to the agreement to enter into the brokerage agreements. The FCPA was intended to curtail foreign bribery, however the Indictment in this case fails to charge facts showing any bribes.

[…]

Furthermore, through being devoid of any allegation of any effect on the United States or any of its departments, the government’s FCPA conspiracy charge is also contrary to current policy. The current head of the Criminal Division of the Department of Justice has publicly stated that “[c]onduct that does not implicate U.S. interest should be left to our foreign counterparts or appropriate regulators.” See Office of Public Affairs, United States Department of Justice, Head of Justice Department’s Criminal Division Matthew R. Galeotti Delivers Remarks
at American Conference Institute Conference (Jun. 10, 2025). No government interests were implicated or affected through the charged conduct. The purposes of the FCPA itself weren’t even implicated since there were no American or foreign competitors for the uniform contracts. The Court should find the government’s FCPA conspiracy charge fatally deficient and contrary to the policies underlying the FCPA, and therefore subject to dismissal for failure to state a claim.”

A section of the motion is titled “Dismissal as to Mr. Zaglin Is Consistent With the Executive Order of the President of the United States,” and states:

The President recognized in his Executive Order that the FCPA has been “systematically” and “steadily” “stretched beyond proper bounds and abused…” Executive Order, § 1.3 In Snyder, the Supreme Court emphasized that criminal statutes such as anti-bribery statutes like the FCPA which “‘can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.’” Snyder, 603 U.S. at 18 (quoting Sun-Diamond Growers of Cal., 526 U.S. at 412). This case, as it concerns Mr. Zaglin, is emblematic of the abuse and overreaching under the FCPA denounced by the President in the Executive Order. As illustrated above, the government has brought a prosecution under the FCPA without facts showing any agreement or quid pro quo to bribe a foreign official within the scope of the FCPA. As one of the existing enforcement actions under the FCPA subject to the President’s Executive Order, this action should be dismissed as contrary to public policy The Attorney General, furthermore, has announced that a priority for the Department of Justice is the prosecution of drug cartels and “transnational criminal organizations.” See Office of the Attorney General, Memorandum for All Department Employees, Total Elimination of Cartels and Transnational Criminal Organizations (Feb. 5, 2025). The new focus of the Department on cartels and criminal organizations has been confirmed in the recent Memorandum of the Deputy Attorney General of the United States to the Head of the Department’s Criminal Division, prepared pursuant to the President’s Executive Order. See Deputy Attorney General of the United States’ Memorandum, Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) (June 9, 2025). Overbroad enforcement actions against domestic individuals and businesses under the FCPA, such as that in this case, should be abated on the basis that it is in conflict with current policy.”