United States v. Seng - 934 F.3d 110 (2d Cir. 2019)

Rule:

Boyland's reasoning, i.e., that McDonnell's official act standard for the quo component of bribery as proscribed by 18 U.S.C.S. § 201 did not apply to the more expansive language of 18 U.S.C.S. § 666, applies with equal force to the Foreign Corrupt Practices Act (FCPA), which prohibits giving anything of value in exchange for any of four specified quos. While the first FCPA quo referencing an act or decision of a foreign official in his official capacity might be understood as an official act, the FCPA does not cabin official capacity acts or decisions to a definitional list akin to that for official acts in 18 U.S.C.S. § 201(a)(3). 15 U.S.C.S. §§ 78dd-2(a)(1)(A)(i); 78dd-3(a)(1)(A)(i). Nor does it do so for acts or omissions that violate an official's duty, or that affect or influence the act or decision of a foreign government. 15 U.S.C.S. §§ 78dd-2(a)(1)(A)(ii), (B); 78dd-3(a)(1)(A)(ii), (B). Finally, the FCPA prohibits bribing a foreign official to secure an improper advantage in obtaining, retaining, or directing business, without requiring that the advantage be secured by an official act as limited by the § 201(a)(3) definition. 15 U.S.C.S. §§ 78dd-2(a)(1)(A)(iii); 78dd-3(a)(1)(A)(iii).

Facts:

Defendant Ng Lap Seng paid two United Nations ("U.N.") ambassadors—one of whom was for a time also serving as President of the General Assembly—more than $1 million to secure a U.N. commitment to use defendant’s Macau real estate development as the site for an annual U.N. conference. Based on this conduct, defendant was convicted after a jury trial of paying and conspiring to pay bribes and gratuities in violation of 18 U.S.C. §§ 371, 666, and the Foreign Corrupt Practices Act ("FCPA"), 15 U.S.C. §§ 78dd-2, 78dd-3, as well as of related conspiratorial and substantive money laundering, 18 U.S.C. § 1956(a)(2)(A), (h). Defendant appealed his conviction, arguing that his conduct cannot have violated § 666 because the U.N. was not an "organization" within the meaning of that statute, the jury instructions as to both § 666 and FCPA bribery were deficient in light of McDonnell v. United States, 136 S. Ct. 2355, 195 L. Ed. 2d 639 (2016), the evidence was insufficient as a matter of law to support a guilty verdict for these crimes, and without valid § 666 and FCPA predicate counts of conviction, his related money laundering convictions cannot stand.

Issue:

Should the court reverse defendant’s conviction based on the arguments he raised?

Answer:

No.

Conclusion:

Defendant's argument that organization, as used in 18 U.S.C.S. § 666, had to be construed narrowly to reference only private, and not public, entities such as the UN was rejected where the statute's text and context warranted excluding only governments, not public international organizations. According to the Court, the UN was not excludable as a foreign government, federalism concerns were not present, and the statutory history did not require such a construction. Defendant's McDonnell challenge was rejected as 18 U.S.C.S. § 201(a)(3)'s definition of official act, which informed the McDonnell standard, did not delimit the quid pro quo elements of § 666 and Foreign Corrupt Practices Act bribery, and to the extent the district court erroneously charged an official act instruction as to defendant § 666 crimes, that error was harmless beyond a reasonable doubt. Accordingly, defendant’s conviction was affirmed.