US court upholds minister Sam Kutesa briber conviction

The United States Court of Appeals has in a December 29, 2020 ruling upheld the March 2019 conviction of Chi Ping Patrick Ho, a citizen of the Hong Kong who was found guilty of bribing Uganda Foreign Affairs minister Sam Kutesa with $500,000 in 2016.

Ho was found guilty in 2017 by a grand jury in the Southern District of New York on seven counts including foreign corrupt practices and money laundering. He was later sentenced to 36 months’ imprisonment and a fine of $400,000. 

BACKGROUND

Ho was found guilty of paying bribes in Africa to secure unfair business opportunities for his China Energy Fund Committee (CEFC).

The bribes included $2 million in cash wrapped in gift boxes to Chad President Idriss Déby in December 2014. Although President Déby expressed shock and angrily rejected the $2 million bribe, saying “why [do] people believe all African leaders are corrupt”, and CEFC ultimately failed to secure any oil rights in Chad, Uganda’s Foreign Affairs minister, Kutesa according to submitted court evidence, solicited for a $500,000 bribe in 2016 though his wife Edith Gasana Kutesa from Ho.

Christened by US courts as the ‘Uganda Scheme’, earlier Ho in 2014 sought for meeting with Kutesa, who had by this time had begun a one-year term as president of the UN General Assembly. The purpose of Ho’s meeting according to court documents was to seek Kutesa’s help for CEFC to develop business advantages in Uganda’s oil fields.

Around February 2016, Kutesa who had completed his term as president of UN General Assembly, and had already returned to Uganda, through his wife Gasana according to leaked email exchanges solicited a bribe to be disguised as a payment to a charitable foundation.

On May 5, 2016, Ho wired $500,000 to Kutesa’s Food Security and Sustainable Energy Foundation account in Stanbic bank in Kampala. In return, Kutesa was to secure a meeting for Ho with President Yoweri Museveni and also ensure that CEFC officials attend Museveni’s May 2016 inauguration.

Five months after receiving the bribe, Kutesa’s wife wrote to Ho about a confidential opportunity to acquire a Ugandan bank - believed to be the defunct Crane bank.

THE APPEAL

In his appeal petition, Ho did not particularly deny bribing Kutesa or attempting to bribe the Chadian president but contended that there was insufficient evidence to establish that he acted on behalf of a “domestic concern,” as required to convict under § 78dd-2 of the FCPA.

Ho also asserted that the jury was improperly instructed that a violation and that the money laundering statute, which covers wire transfers that “to” or “from” the United States, did not reach a transaction that merely involves the use of correspondent banks in the United States, where the transfer originated in Hong Kong and concluded in Uganda. Ho also further contended that the district court abused its discretion by admitting certain out-of-court statements and summary charts into evidence.

However, the Court of Appeals reminded Ho that the law “prohibits bribery designed to obtain, retain, or direct business not only for or to the briber, but for or to ‘any person’”). Notably, the statute addresses the goal of corruptly assisting a domestic entity in obtaining business either “for or with” another company, suggesting that the domestic concern need not itself be seeking to obtain business “with” that company'

"We conclude that the evidence introduced at trial was more than sufficient to prove that Ho acted on behalf of the U.S. NGO to assist it in obtaining business for CEFC Energy," reads the ruling in part. 

Earlier, President Museveni who was equally accused of receiving another $500,000 bribe from Ho, defended Kutesa, saying the money was a donation to the minister's NGO and not a bribe.