Asset Recovery Watch

ARW-102
Kazakhstan Oil Mining / James Giffen - Mercator Corporation (United States)
Kazakhstan
Unnamed senior officials ("KO-1," "KO-2," and "KO-3")
United States
Undertaking Recovery Effort, Location of Recovery Effort
2003
Ongoing
Art.16, Art.23
Yes
Criminal Prosecution and Settlement agreements; Non-conviction based confiscation
Other
Memorandum of Understanding
Memorandum of Understanding by Kazakhstan, Switzerland and the United States; World Bank administration of project
Completed
Assets Returned to Victim or Requesting Jurisdiction
$115,000,000
Source: BOTA Foundation Independent Auditor's Report and Special Purpose Financial Statements for the Year Ended 31 December 2013.
Yes
Memorandum of Understanding
See also Swtizerland entry.  Pursuant to an Amended Memorandum of Understanding signed in May 2008 by the Governments of Kazakhstan, Switzerland and the United States, $84 million were to be returned to Kazakhstan. The funds were to be used to establish the BOTA Foundation, with its operations overseen by the World Bank.  (Source: Amended Memorandum of Understanding by the Swiss Confederation, United States and the Republic of Kazakhstan (May 2008).  According to the BOTA Foundation Independent Auditor's Report and special financial statements for the year ended 31 December 2013, the BOTA Program is funded with US$ 115 million (principal and interest) held on account No. T-94025 with Pictet and Cie in Switzerland in the name of the Treasury of the Ministry of Finance of the Republic of Kazakhstan.  The Foundation subsequently announced that it had completed its mission and ceased operations.  (Source:  BOTA Foundation Final Summative Report, February 12, 2015, at https://www.irex.org/sites/default/files/BOTA%20Summative%20Report%20FIN....)     In addition, as part of their August 6, 2010 plea agreements, U.S. citizen  James Giffen and The Mercator Corporation relinquished any right or title they may have to additional Swiss accounts. (Sources: U.S. v. Approximately $84 million on deposit in account no. T-94025 in the name of the Treasury of the Ministry of Finance of the Republic of Kazakhstan, Case No. 2:07-cv-03559-LAP (S.D.N.Y.); August 6, 2010 plea agreements and information in U.S. v James H. Giffen, Case No. S4 03 Cr. 404 (WHP) and U.S. v The Mercator Corporation, Case No. S3 03 Cr. 404 (WHP) (S.D.N.Y.)).

Unknown as to Unnamed Senior Officials 1-3. According to the Judgment in a Criminal Case filed in the U.S. District Court for the Southern District of New York, Mercator Corporation pleaded guilty to one count violation of Foreign Corrupt Practices Act and was fined $32,000, which it satisfied on November 30, 2010. (Sources: US v. Mercator Corporation, Case No. 1:03-cr-00404-WHP (S.D.N.Y.), Judgment in a Criminal Case filed on November 23, 2010 and Satisfaction of Judgment filed on December 9, 2010.) According to the Judgment in a Criminal Case filed in US v. James Giffen in the U.S. District Court for the Southern District of New York, Mr. Giffen pleaded guilty to one count of willful failure to supply information regarding foreign bank accounts and sentenced to time served. (Source: US v. Giffen, Case No. 1:03-cr-00404-WHP (S.D.N.Y.), Judgment in a Criminal Case, filed on November 23, 2010.)

Unspecified
N/A
N/A
Federal Bureau of Investigation
U.S. Attorney for the Southern District of New York; Department of Justice, Fraud Section; Department of Justice, Criminal Division, Asset Forfeiture and Money Laundering Section
U.S. District Court for the Southern District of New York