United States v. Hoskins

902 F.3d 69 (2d Cir. 2018)

 

RULE:

The presumption against extraterritoriality bars the government from using conspiracy and complicity statutes to charge a defendant with an offense not punishable under the Foreign Corrupt Practices Act (FCPA) because of the statute's territorial limitations, including both conspiracy to violate 15 U.S.C.S. §§ 78dd-2 and 78dd-3, and accomplice liability, as the FCPA defined precisely categories of persons who might be charged for violating its provisions.

The district court erred in dismissing that part of the the conspiracy alleging that defendant willfully conspired with various codefendants to, while in the territory of the United States, commit acts in furtherance of bribing foreign officials in violation of § 78dd-3, because the government's intention to prove that defendant was an agent of a domestic concern placed him squarely within the terms of the statute.

FACTS:

The government alleged that several defendants, including Hoskins, were part of a scheme to bribe officials in Indonesia so that their company could secure a $118 million contract from the Indonesian government. Hoskins worked for Alstom S.A. ("Alstom"), a global company headquartered in France that provides power and transportation services. During the relevant time, Hoskins was employed by Alstom's UK subsidiary, but was assigned to work with another subsidiary called Alstom Resources Management, which is in France. The alleged bribery scheme centers on Alstom's American subsidiary, Alstom Power, Inc. ("Alstom U.S."), headquartered in Connecticut. The allegations were that Alstom U.S. and various individuals associated with Alstom S.A. retained two consultants to bribe Indonesian officials who could help secure the $118 million power contract for the company and its associates. Hoskins never worked for Alstom U.S. in a direct capacity. But the government alleged in its superseding indictment that Hoskins, while working from France for Alstom Resources Management, was "one of the people responsible for approving the selection of, and authorizing payments to, [the consultants], knowing that a portion of the payments to [the consultants] was intended for Indonesian officials in exchange for their influence and assistance in awarding the [contract.]" The government alleged that several parts of the scheme occurred within the United States. The indictment further alleged that one of the consultants kept a bank account in Maryland. In some cases, funds for bribes allegedly were paid from bank accounts held by Alstom and its business partners in the United States, and deposited in the consultant's account in Maryland, specifically for the purpose of bribing Indonesian officials. The indictment also stated that several executives of Alstom U.S. held meetings within the United States regarding the bribery scheme and discussed the project by phone and email while present on American soil. The government conceded that, although Hoskins "repeatedly e-mailed and called . . . U.S.-based coconspirators" regarding the scheme "while they were in the United States," Hoskins did not travel to the United States while the bribery scheme was ongoing. The indictment brought twelve counts against Hoskins. This appeal concerned the first seven counts of the indictment.

ISSUE:

May a foreign national who has never set foot in the United States or worked for an American company, be held liable, under a conspiracy or complicity theory, for violating FCPA provisions targeting American persons and companies and their agents, officers, directors, employees, and shareholders, and persons physically present within the United States?

ANSWER:

No

CONCLUSION:

The Court held that the presumption against extraterritoriality barred the government from using conspiracy and complicity statutes to charge defendant with an offense not punishable under the Foreign Corrupt Practices Act (FCPA) because of the statute's territorial limitations, including both conspiracy to violate 15 U.S.C.S. §§ 78dd-2 and 78dd-3, and accomplice liability, as the FCPA defined precisely categories of persons who might be charged for violating its provisions; The district court erred in dismissing the second object of the conspiracy alleging that Hoskins willfully conspired with various codefendants to, while in the territory of the United States, commit acts in furtherance of bribing foreign officials in violation of § 78dd-3, because the government's intention to prove that Hoskins was an agent of a domestic concern placed him squarely within the terms of the statute.

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