2nd Circuit rejects McDonnell challenge, affirms foreign bribery conviction of Guinean official

On August 5, 2019, the US Court of Appeals for the Second Circuit affirmed the money laundering conviction of Mahmoud Thiam.  Thiam, a US citizen, served as Minister of Mines and Geology of the Republic of Guinea in 2009 and 2010.  During that time, the China International Fund (CIF), a Chinese company, paid him $8.5 million in exchange for his assistance to CIF in forming a joint venture to invest in various projects in Guinea.  Thiam transferred the proceeds from a Hong Kong bank account to accounts in the US and elsewhere, and used the proceeds in part to purchase luxury items.  As jury convicted Thiam of money laundering under 18 U.S.C. §§ 1956 and 1957.  Both statutes prohibit transactions involving the proceeds of “specified unlawful activity,” which the statutes define to include “an offense against a foreign nation involving . . . bribery of a public official” in violation of the laws of that foreign nation.

On appeal, Thiam argued that the jury instructions were erroneous because they failed to apply the definition of “official act” set out in McDonnell v. United States, 136 S. Ct. 2355 (2016), to Articles 192 and 194 of Guinea’s Penal Code (the violations of which were the “specified unlawful activity” underlying Thiam’s convictions).  The Second Circuit rejected this argument.  First, the Second Circuit held that principles of international comity counseled against narrowing Articles 192 and 194 by applying McDonnell to it, as this would result in artificially limiting conduct that Guinea had chosen to criminalize.  Second, the Court distinguished prior Second Circuit cases that had applied McDonnell’s definition of “official act,” holding that those cases were limited to the US federal honest services fraud and Hobbs Act extortion statutes at issue in such cases, and so did not provide support for applying McDonnell to Articles 192 and 194.  The Second Circuit also rejected challenges by Thiam to the sufficiency of the evidence and to certain evidentiary rulings made at trial, and affirmed the conviction.

Opinion (Thiam) 

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