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Did Chevron Violate the Foreign Corrupt Practices Act (FCPA) in Liberia?

WHY DID CHEVRON GIVE ROBERT A. SIRLEAF FOUNDATION US$10.5 MILLION DOLLARS IN LIBERIA? 

Some two to three years ago, news of Liberia being suitable for off-shore oil exploration and drilling was widespread and several foreign oil companies landed in the country to seek permits for exploration and drilling operations. One of those companies was US oil giant Chevron.

According to several international investigations and reports, especially a more detailed report authored by the Sustainable Development Institute (SDI), Chevron is said to have given a local private foundation belonging to the son of Liberian president Ellen Johnson Sirelaf US$10.5 million dollars for what it referred to as “social development fund” to help Liberia.

Mr. Robert Sirleaf (a naturalized U.S. citizen and son of President Sirleaf) was then the head of the National Oil Company of Liberia (NOCAL), the country’s oil regulatory agency that sold Liberia’s oil blocks and issued exploration and drilling permits to foreign investors and businesses, including Chevron at the time.

Robert A. Sirleaf, senior economic advisor to the president, former Chairman of NOCAL and special envoy for special investments, founder and owner of the Robert Sirleaf Foundation. Also, known as a the “Trophy Man” in Liberia

Investigative sources say the US$10.5 million dollars was given to allegedly influence Mr. Robert A. Sirleaf to authorize approval of oil blocks for and drilling by Chevron.  Assuming Chevron wanted to help lift ordinary Liberians from poverty as part of the potential oil deal, why were the funds not given to the Liberian government directly nor to a government agency but instead to the private foundation owned and managed by the president’s son (who was both the senior economic adviser to the president and head of the country’s  oil regulatory agency)?   Didn’t Chevron know that such a donation had national implication since any potential national resources in Liberia has national ownership?

One former top US diplomat who served in Liberia said an incoming Liberian government has a solemn duty and justifiable obligation to the Liberian people to pursue an impartial, thorough and detailed investigation into how the Chevron’s US$10.5 million dollars was used and for what purpose.  The diplomat described the Chevron-Robert A. Sirleaf’s transaction as a “shameless but bold criminality and an abuse of public trust” on the part of the president’s family.

A Liberian in Canada, Paul Zinnah, said Chevron may not have been the only major foreign company or investor that may have paid such bribe to the benefit of the president’s son and his associates. Another Liberian,  Emily Collins, in Portland, Oregon agreed that all other major extractive industries’ players in Liberia were subject to the ultimate decision of  Robert A. Sirleaf as to whether they could invest in the country or not.  The question is, will any group of Liberian citizen have standing in taking Chevron to court for violation of the FCPA in their country?

Some major companies that operated in Liberia when Robert A. Sirleaf exercised absolute power and authority

According to a SDI’s reports https://investigations.sdiliberia.org/story/?id=34    the funds (Chevron’s US$10.5 million dollars) were “appropriated” by Mr. Robert A. Sirleaf and his foundation, and under pretense, Robert Sirleaf and his foundation sought to carry out “unfinished and sub-standard projects around the Liberian capital, Monrovia” that amounted to less than US$100, 000 in total or less in total operational cost.

Considering Robert A. Sirleaf’s role, power and influence in his mother’s government at the time and even now, especially as head of the NOCAL, the question is: Did Chevron flag the United States’ Foreign Corrupt Practice Act of 1977 (FCPA)?

The Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. § 78dd-1, et seq.) is a United States federal law known primarily for two of its main provisions, one that addresses accounting transparency requirements under the Securities Exchange Act of 1934 and another concerning bribery of foreign officials.

The idea of the Foreign Corrupt Practices Act (FCPA) is to make it illegal for companies and their supervisors to influence foreign officials with any personal payments or rewards. The FCPA applies to any person who has a certain degree of connection to the United States and engages in foreign corrupt practices.

The Act also applies to any act by U.S. businesses, foreign corporations trading securities in the U.S., American nationals, citizens, and residents acting in furtherance of a foreign corrupt practice if they are physically present in the U.S. This is considered the nationality principle of the act.  Any individuals that are involved in those activities may face prison time. This act was passed to make it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business.

In the case of foreign natural and legal persons, the Act covers their deeds if they are in the U.S. at the time of the corrupt conduct. This is considered the protective principle of the act. Further, the Act governs not only payments to foreign officials, candidates, and parties, but any other recipient if part of the bribe is ultimately attributable to a foreign official, candidate, or

President Ellen Johnson Sirlead (left) and an Oil Investor (Right)

party. These payments are not restricted to monetary forms and may include anything of value. This is considered the territoriality principle of the act.

Enforcement
The Securities and Exchange Commission (SEC) and the Department of Justice are both responsible for enforcing the FCPA. This is because the FCPA both amends an SEC Act and the criminal code. The SEC enforces the Act for companies it regulates and the Department of Justice enforces the bill regarding all other domestic companies. This split was criticized even before the act was passed. In 2010 the SEC created a specialized unit for FCPA enforcement. In 2012, the SEC and the DOJ issued their first joint guide to the FCPA.

President Sirleaf (2nd from right) and Senator Findley (right) with NOCAL officials

In April 2017, Attorney General Jeff Session traveled to an ethics lawyers conference to assure them that he would continue prosecutions under the FCPA, regardless of new SEC Chairman Jay Clayton’s expressed skepticism and of President Donald Trump’s comments that it is a “horrible law” and “the world is laughing at us.”

Requirements
The anti-bribery provisions of the FCPA make it unlawful for a U.S. person, and certain foreign issuers of securities, to make a payment to a foreign official for the purpose of obtaining or retaining business for or with, or directing business to, any person.  Since the 1998 Amendment of the FCPA they also apply to foreign firms and persons who take any act in furtherance of such a corrupt payment while in the U.S. The meaning of foreign official is broad.

Robert A. Sirleaf, former chairman of NOCAL, senior economic adviser

For example, an owner of a bank who is also the minister of finance would count as a foreign official according to the U.S. government. Doctors at government-owned or managed hospitals are also considered to be foreign officials under the FCPA, as is anyone working for a government-owned or managed institution or enterprise. Employees of international organizations such as the United Nations are also considered to be foreign officials under the FCPA. A 2014 federal appellate court decision has provided guidance on how the term “foreign official” is defined under FCPA.

At the time of the donation, Robert A. Sirleaf was the chairman of the National Oil Company of Liberia (NOCAL), the Liberian oil regulatory agency, senior economic adviser to the President of Liberia, and also the owner and president of the Robert A. Sirleaf Foundation that Chevron gave a whooping US$10.5 million dollars to for no reason other than to allegedly bribe him to smooth things over for them.

Because the Act concerns the intent of the bribery rather than the amount, there is no requirement of materiality. Offering anything of value as a bribe, whether cash or non-cash items, is prohibited.

US Attorney General Jeff Sessions promises to investigate FCPAs ‘cases no matter

The FCPA also requires companies whose securities are listed in the U.S. to meet its accounting provisions. These accounting provisions operate in tandem with the anti-bribery provisions of the FCPA, and require respective corporations to make and keep books and records that accurately and fairly reflect the transactions of the corporation and to devise and maintain an adequate system of internal accounting controls.

Could Robert A. Sirleaf face the US Treasury’s Internal Revenue Service’s Special Agent Unit very soon?

Some foreign affairs commentators in New York and legal issues’ observers in Washington, DC say the fact that Mr. Robert A. Sirleaf, an American citizen, has not filed federal taxes regarding his income over the past years while earning millions, could pose a serious issue for him with the US Internal Revenue Service (IRS).

Private financial and forensic investigators researching stolen wealth from Liberia in Europe, the Middle East, Asia and the Caribbean Islands say Robert A. Sirleaf’s total assets when he worked for Wells Fargo Bank in the United States was less than US$75,000 dollars, but today, he is considered one of the richest men in West Africa, both in properties, other assets and cash.

According to the Internal Revenue Service (IRS) of the US Treasury, all American citizens are obliged to file annual federal taxes, whether in the United States or abroad. Failure to file federal taxes or to not disclose one’s income is a serious federal crime that is punishable by several years in federal prisons

Taxpayers Living Abroad

http://Taxpayers Living Abroad – IRS tax forms

If you are a U.S. citizen or resident alien, the rules for filing income, estate, and gift tax returns and paying estimated tax are generally the same whether you are in the United States or abroad. Your worldwide income is subject to U.S. income tax, regardless of where you reside.

When to File
If you are a U.S. citizen or resident alien residing overseas, or are in the military on duty outside the U.S., on the regular due date of your return, you are allowed an automatic 2-month extension to file your return without requesting an extension. For a calendar year return, the automatic 2-month extension is to June 15. Note that you must pay any tax due by April 15 or interest will be charged starting from April 15.

Where to File
If you are a U.S. citizen or resident alien (including a green card holder) and you live in a foreign country, mail your U.S. tax return to: Department of the Treasury, Internal Revenue Service Center, Austin, TX 73301-0215, USA.

US Treasury’s Internal Revenue Service’s Special Agents could go after Robert Sirleaf very soon for failing to pay federal taxes and penalties that could amount to millions of United States dollars over half a decade.

Credible sources say Mr. Robert A. Sirleaf has not filed federal taxes for almost a decade despite earning millions of dollars in income while working abroad.  More development on this story will unfold in the coming days, weeks and months as the IRS seeks to obtain more information.  All efforts to reach Mr. Robert A. Sirelaf proved unsuccessful. Sources say he is currently living in Equatorial Guinea, a repressive African nation that is developing a reputation for harboring people with stolen wealth .

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