In October 2011, Carlos Rodriguez, one of the defendants in the Haiti Teleco case, was sentenced to 7 years in prison (see here for the prior post).  Rodriguez was convicted in August 2011, along with his co-defendant Joel Esquenazi, of FCPA and related counts.  In this prior post discussing the verdict, I noted that given the “foreign official” jury instructions at trial the defendants have a good chance to challenge the instruction on appeal should they so choose.  This was before the strange developments concerning the existence of Haiti Teleco – see here, here and here for prior posts.

This past Friday, Rodriguez filed a motion for release pending appeal – see here.  His appellate counsel is lead by David Simon (Foley & Lardner – here) and also includes Foley attorneys Michael Halfenger – here, Pamela Johnson – here and Lauren Valiente – here.   This will be the first time in the FCPA’s history that “foreign official” will be squarely before a Circuit Court.

In the motion, Rodriguez moves the Court to order his release pending appeal of his conviction and sentence.  The motion states as follows.  “This appeal will address issues of first impression in any circuit involving the [FCPA]; additionally, the record contains a number of serious errors that deprived Rodriguez of a fair trial and affected his substantial rights.  This is the quintessential case where release (with bail ordered) pending appeal should be granted.  Rodriguez should not be incarcerated, as he is now, while these significant legal issues are briefed and addressed by this Court.  He was on bail during the entire pretrial period and trial.  He is not a flight risk, which the government has already conceded.  This motion should be granted because all the counts fail and should be reversed …”.

According to the motion, the appeal will present substantial questions relating to:  “(1) whether the district court erred in its jury instructions regarding the meaning of a key statutory term in the FCPA – what is an ‘instrumentality’ of a foreign government; (2) whether there was sufficient evidence to sustain the jury’s verdict on the ‘foreign official’ element; (3) whether the district court erred in its wire fraud jury instructions; (4) whether there was sufficient evidence presented to establish a violation of Haitian bribery law as a predicate for the conspiracy and money laundering charges; and (5) whether the money laundering charges violated the merger rule.”