My post last week discussed the recent U.S. Court of Appeals decision in United States v. Hoskins, which held that a foreign national cannot be charged with aiding and abetting a violation of the Foreign Corrupt Practices Act (FCPA), or with conspiracy to violate the FCPA, unless that foreign national either took some action connected to the violation within US territory, or else acted as an agent of a US domestic concern or an issuer of securities in the US. That’s a bit of a mouthful. To put this another way: The FCPA itself says that it applies extraterritorially to US nationals (including US firms), to non-US firms that issue securities on US markets, and to the officers, employees, directors, and to agents of firms in either of the preceding categories. The FCPA also applies to foreign individuals or firms (other than issuers) if but only if they engage in some part of the wrongful conduct while in US territory. The question is whether such foreign individuals (including non-issuer firms), who act outside of US territory, and so cannot be charged directly with violating the FCPA’s anti-bribery provisions, can nevertheless be charged with aiding and abetting, and/or conspiring with, some other actor’s FCPA violation. In Hoskins, the U.S. Court of Appeals for the Second Circuit said no: Not only can a foreign national (other than an issuer or an agent of a US domestic concern or issuer) not be charged with FCPA violations based on conduct abroad, but such a defendant’s conduct abroad also cannot support a charge of aiding, abetting, or conspiring in an FCPA violation.
Perhaps because appellate court decisions on legal issues related to the FCPA are so rare, Hoskins has attracted considerable commentary. Most of this discussion, including my post last week, focuses on summarizing the court’s holding, considering its implications for future cases, and assessing whether Hoskins’ limitation of complicity and conspiracy liability is likely to improve or worsen FCPA enforcement overall. However, I haven’t seen very much commentary on the question whether, as a matter of legal doctrine and legal interpretation, Hoskins was decided correctly—that is, whether it is consistent with precedent, statutory text, and generally-accepted jurisprudential principals. That’s entirely understandable—most of the initial wave of commentary is coming either from law firms that want to explain to their clients what this decision means for them, or from those interested more in the policy issues than in parsing the doctrine. Nevertheless, I do think it’s worth getting a conversation going about whether Hoskins’ reasoning is (legally and doctrinally) sound. I may not be the best person to do this, as I’m not a criminal law specialist, but I figured I might as well take a crack at it, if only in the hopes that doing so might prompt some of the real experts to weigh in.
After reading the case a few times, and delving into some of the earlier case law and other materials, it seems to me that Hoskins is a hard case. Really really hard. And I tentatively think that is was probably decided incorrectly. Or maybe “incorrectly” is too strong—instead, perhaps I should say that the Hoskins result is in tension with existing doctrine, and the result the court reaches, though defensible, requires an aggressive expansion of traditional doctrinal principles, one that the court doesn’t really acknowledge. For those readers out there who care more about the policy bottom-line than about the intricacies of legal doctrine, you may want to stop here. Law nerds, read on!
The starting point for the discussion is the U.S. law on complicity and conspiracy. The complicity statute, codified at 18 U.S.C § 2(a), states that anyone who “aids, abets, counsels, commands, induces or procures [the commission of a federal crime] is punishable as a principal [that is, as if he or she had committed the offense].” The conspiracy statute, codified at 18 U.S.C. § 371, creates a separate offense for conspiring with at least one other person to commit a federal crime, so long as at least one of the conspirators performs “any act to effect the object of the conspiracy.” (To keep things simple, I’ll refer to these together as “complicity or conspiracy liability,” though that’s a bit sloppy, as complicity is a separate theory of liability while conspiracy is a separate offense.) The important thing to understand about complicity and conspiracy liability is that they can apply even to defendants who did not and could not themselves commit the primary offense. Thus the getaway driver for a bank robbery can be guilty of aiding and abetting bank robbery, even though the getaway driver’s conduct doesn’t satisfy the elements of the federal bank robbery offense, and a defendant who helps a bankrupt party hide her assets can be guilty of conspiring to hide those assets, even though the primary offense can be committed only by the party in bankruptcy. Complicity and conspiracy liability are thus quite expansive—as long as someone committed the underlying federal crime, then someone else who helped with, instigated, or planned the crime can be charged with complicity and/or conspiracy, even if that latter party doesn’t belong to the limited class of individuals who are legally capable of committing the primary offense.
So that’s where the analysis begins. If it were also where the analysis ended, then it would be straightforward to conclude that a defendant like Mr. Hoskins can be convicted as an accomplice and/or conspirator in an FCPA violation. After all, if the allegations against him are true, Mr. Hoskins (a foreign national) instructed executives at a US firm in how to go about making bribe payments to foreign government officials, arranged the connections with the middlemen who would handle the bribe payments, and promised to help ensure that the payments were approved by the corporation. Mr. Hoskins did not himself violate the FCPA (indeed, as a foreign national who was outside the US the whole time, he could not have violated the FCPA). But so what? As just explained, complicity and conspiracy liability do not require that the defendant did, or legally could have, committed the underlying crime. In this case, assuming the allegations are true, an FCPA violation clearly occurred—a US firm and its executives paid bribes to a foreign government official to obtain business—and Mr. Hoskins clearly both conspired with these US actors, assisted them, and indeed instructed them in the violation. Under ordinary circumstances, that would suffice to establish complicity and conspiracy liability.
The case is harder, though, because of two potential limits on complicity and conspiracy liability: the presumption against extraterritorial applications of US law, and the so-called “affirmative legislative policy” exception to complicity and conspiracy liability. The Court of Appeals that decided Hoskins thought that each of those limits was independently sufficient to find that a foreign national acting outside the US can’t be guilty of aiding or conspiring in an FCPA violation. I think that’s wrong: Neither of these limitations on its own, at least as traditionally interpreted and applied, would support the court’s conclusion. However, it’s possible that, for reasons the court seems to intuit but doesn’t fully articulate, the combination of these factors might somehow justify the conclusion that a foreign national acting abroad cannot be found guilty of acting as an accomplice or co-conspirator in an FCPA violation. I don’t think I agree with that view either, and it would seem to require breaking some new doctrinal ground, but I acknowledge that it’s not necessarily inconsistent with existing doctrine. I’ll proceed by discussing each of these possible limits one at a time, and then consider their possible combination.
Let’s start with extraterritoriality. Although the United States has the legal authority to apply its law outside U.S. territory (subject to some important limitations), the background presumption is that federal statutes only apply in US territory unless there’s a clear indication that the statute was intended to have extraterritorial effect. Neither the complicity statute nor the conspiracy statute says explicitly that it applies abroad, so one might conclude that only those who act within US territory can be charged with complicity or conspiracy. That’s a logically coherent position, but it’s not the current law. Rather, complicity and conspiracy liability are extraterritorial if (but only if) the primary offense to which they attach has extraterritorial application. (This principle also applies, by the way, to other “ancillary” offenses, such those under the “accessory after the fact” and harboring statutes and the Racketeer Influenced and Corrupt Organizations Act.) In other words, for those federal crimes that are only crimes if committed in US territory (the default position), an accomplice or co-conspirator can only be found liable if he or she also acted in US territory, but if liability for the underlying crime is extraterritorial, then complicity and conspiracy liability also apply extraterritorially. So, for example, the foreign recipient of a cocaine shipment from a US party can be charged with conspiracy to violate a US law prohibiting the export of controlled substances, and a foreign bank can be charged with conspiracy to commit money laundering for its role in a money laundering scheme, even if the bank doesn’t take any action in furtherance of the conspiracy in US territory.
Now, with respect to certain parties—US domestic concerns, issuers of US securities, and their officers, employees, and agents—the FCPA is without question an extraterritorial statute. So it would seem to follow that the prohibition on aiding, abetting, instigating, or conspiring in the commission of such a violation by one of those parties also has extraterritorial application—even if the accomplice or co-conspirator could not and did not violate the FCPA. The Hoskins court’s discussion of this issue just seems confused: The court says over and over that complicity and conspiracy liability are extraterritorial only to the extent that the underlying primary offense is extraterritorial (true) and that the FCPA itself does not apply extraterritorially to foreign nationals like Mr. Hoskins (also true), and the court then concludes from this that accomplice and conspirator liability can’t apply to foreign nationals like Mr. Hoskins. But that conclusion doesn’t follow. Under conventional doctrinal principles, which the appeals court didn’t purport to alter, as long as the statute prohibits the extraterritorial conduct by some class of actors (which it does), then other actors (including those who could not legally be charged with violating the primary prohibition) may be charged with extraterritorial complicity or conspiracy with that violation.
The second possible limitation on the broad scope of complicity or conspiracy liability is the so-called “affirmative legislative policy” exception. The idea here is that even though it’s usually the case that someone who assists in the planning or commission of a crime can be charged as an accomplice or conspirator, in some cases it’s clear that doing so would undermine a deliberate legislative choice to impose (certain) penalties only on some participants in a crime, not on others. This exception is extremely narrow, and has traditionally been invoked in only two kinds of cases (that I was able to find):
- First, there are certain criminal offenses where the consent (in the sense of agreement or passive acquiescence) of another party is usually (though not necessarily always) involved, but where the statute in question, by its terms, only criminalizes the conduct of the instigating party. Courts have reasoned that in cases like this, treating the acquiescing party as an accomplice or co-conspirator—as would seem to be allowed under the plain terms of the complicity and conspiracy statutes—would thwart the legislative judgment that those acquiescing parties are more like victims, and should not be punished. The leading Supreme Court cases on this point involve an old statute called the Mann Act, which made it a felony to transport any woman or girl across state lines for prostitution or “any other immoral purpose.” The Supreme Court reasoned that it would be improper to charge the woman or girl, who went along with a man’s arrangements to transport her across state lines for sexual purposes, with aiding and abetting a Mann Act violation. However—and this is crucial for the FCPA context—the Court was very clear that this limitation only applies when the woman, though nominally “consenting,” is not the active instigator and planner of the travel; if she is, then she can be held liable (for violating the Mann Act directly, and presumably also as an accomplice or co-conspirator). We see an application of that same basic principle—and limitation on that principle—in the context of the application of a statute called the Hobbs Act to the bribery of public officials. The Hobbs Act prohibits a state or local public official from abusing her official power to extort money or property from any person. Suppose a private party pays a bribe to a public official in exchange for some favorable exercise of the latter’s power. Can the bribe payer be charged with aiding and abetting a Hobbs Act violation (or with conspiracy to violate the Hobbs Act)? If the public official made the bribe demand, and the private party merely acquiesced, then the answer is no, on a logic similar to that applied in the Mann Act cases: Since Congress only criminalized the taking of the money by the public official, it would seem contrary to the clear design of the statute to punish the (passively acquiescing or consenting) bribe payer, as Congress appeared to consider the latter the victim. But—again drawing on the analogy to the Mann Act—if the private party in some sense instigated or encouraged the transaction, then the private party can be charged as an accomplice or co-conspirator in a Hobbs Act violation, even though the private party could not, as a matter of law, be charged with violating the Hobbs Act. (See also here, here, here, and here.) Though the Hoskins court leans heavily on this limitation, especially the old Supreme Court case on the Mann Act, this exemption doesn’t appear to apply in Mr. Hoskins’ case. The sort of complicity and conspiracy with which Mr. Hoskins was charged are not the sorts of things that are typically involved in any FCPA violation. (In that sense this case is quite different from an earlier case, United States v. Castle, which held that a foreign official who takes a bribe cannot be guilty of abetting or conspiring in an FCPA violation.) Moreover, Mr. Hoskins (again assuming the allegations are true) did much more than passively acquiesce to the FCPA violation. The idea that we shouldn’t interpret the complicity and conspiracy statutes so broadly as to punish those whom Congress appears to have considered to be victims rather than offenders would therefore seem to have no application in the Hoskins.
- Second, the “affirmative legislative policy” exception has also been invoked in the context of statutes that create special, and extremely severe, penalties for those who lead a criminal enterprise (such as organized crime “kingpins”). If courts were to apply the complicity statute as written, it would create the odd result that everyone in a criminal organization could be charged with “aiding and abetting” the head of the enterprise, and therefore all of them could be punished as if they themselves were “kingpins.” Courts have therefore understandably reasoned that when a statute seems to identify a subgroup in a criminal enterprise and single out that subgroup for special, different treatment (mainly harsher penalties), this evinces a clear legislative policy that other members of the criminal enterprise should not be subject to these different rules—even though, in contrast to the Mann Act and Hobbs Act cases, one can’t really say that the other employees of the criminal enterprise are passively acquiescing “victims.” (There’s a disagreement among various courts of appeals, which to my knowledge has not yet been resolved, about whether this principle applies only to employees of the criminal enterprise, or also to other accomplices and co-conspirators with the kingpin, such as the corrupt police who provide protection. See here and here.) This narrow exception again has no applicability to Hoskins.
So if the traditional version of the “affirmative legislative policy” exception don’t apply in the Hoskins case, how and why did the court conclude that this principle did preclude accomplice or conspirator liability for a foreign national like Mr. Hoskins? So far as I can tell, the court engaged in a novel and aggressive expansion of this traditionally narrow exception, reasoning that because the legislative history of the FCPA indicates a desire to limit liability of foreign nationals either to those who act in U.S. territory or those who act as agents for a US firm or US issuer, there was a sufficiently clear “affirmative legislative policy” to exclude foreign nationals who don’t fall into those categories from extraterritorial liability for complicity or conspiracy in an FCPA violation by some other actor who is subject to extraterritorial FCPA liability. (In addition to the legislative history, the court advanced some half-hearted and unpersuasive suggestions that the text and structure of the FCPA itself evinced a congressional intent to exclude foreign nationals from extraterritorial complicity or conspiracy liability. In particular, the court noted that the statute enumerated the particular individuals who could be held liable for FCPA violations. But as has already been discussed, under conventional principles of complicity and conspiracy liability a statute’s listing of the specific classes of individuals who can commit an offense does not implicitly limit the scope of complicity or conspiracy liability to those classes.)
On this point I suppose reasonable minds can disagree, but I didn’t find the court’s argument here very convincing. Not only does it go well beyond the traditional applications of the so-called “affirmative legislative policy” exception, but the fragments of legislative history the court cites don’t strike me as indicating a clear legislative decision that parties like Mr. Hoskins can’t be charged as accomplices or co-conspirators. On the Senate side, the court notes that an early draft of the FCPA only applied to companies, with the assumption that complicity and conspiracy liability would be used to go after individuals, but subsequently the FCPA was amended to explicitly list certain classes of individuals who could be directly liable for foreign bribery. Yet the legislative history quoted by the court doesn’t indicate that this express listing of certain classes of individuals was meant to displace complicity or conspiracy liability for others, especially given the background rule, already discussed, that the specification in the statute that certain individuals can be liable for primary violations does not imply that individuals not falling into those classes can’t be charged as accomplices or co-conspirators. On the House side, the court notes that an SEC official testified, in general terms, that applying the FCPA to a corporate agent who never enters the US could create “jurisdictional problems.” But of course the FCPA does apply (extraterritorially) to foreign nationals who are agents, and in any event it’s not clear what these “jurisdictional problems” would be, how Congress understood the concern, or whether those problems would be implicated by applying accomplice and conspirator liability extraterritorially (when the underlying crime is itself extraterritorial). It’s true that the legislative history demonstrates an understandable concern about not extending primary FCPA liability to foreigners acting outside US territory. Fine. But that’s not the question—it’s whether there’s a clear legislative policy to exempt foreigners acting outside US territory from complicity or conspiracy liability, when the primary offense is committed by a US person (or US issuer). And I’m not sure how I see, in Congress’s decision to exempt non-agent foreign nationals acting abroad from primary FCPA liability, an affirmative legislative policy that would be undermined if such foreign nationals could be charged as accomplices or co-conspirators (especially given background due process rules that would shield from liability any foreigner without any connection to the United States).
So I don’t think that either the presumption against extraterritoriality or the affirmative legislative policy exception is enough, by itself, to defeat accomplice or conspirator liability for a foreign national who takes action outside the United States to assist, plan, or support an FCPA violation by a party who is clearly covered by the FCPA’s extraterritorial jurisdiction. But perhaps it’s something about the combination of the extraterritorial aspect of the case and the indications that perhaps Congress made a policy judgment that it would be problematic to impose FCPA liability on a certain class of individuals that together justifies the result in Hoskins. That is, perhaps the usual presumption that an extraterritorial offense implies an extraterritorial application of the complicity and conspiracy statutes (in connection with that offense) can be defeated by evidence—weaker than would ordinarily be required to satisfy the “affirmative legislative policy” exception—that Congress considered and rejected applying the underlying statute itself extraterritorially to the relevant class of individuals, and that invoking complicity or conspiracy liability would thwart that congressional judgment. Maybe. But I think developing and defending this position would require much more analysis than the Hoskins court provided, and I don’t find it terribly persuasive on its face, especially since (as Judge Lynch notes in his concurring opinion) the actual outcome in Hoskins seems to lead to a result that it’s hard to imagine Congress would have wanted if it had considered parties like Mr. Hoskins.
My tentative conclusion, therefore, is that Hoskins was probably wrongly decided, should be reversed if reviewed by the Supreme Court, and should not be followed by other courts of appeals (and perhaps also disregarded by the US government in other jurisdictions). I suspect that mine will be very much a minority position among FCPA commentators, so I welcome corrections, objections, and general pushback.
Thanks for this remarkably lucid post on what’s clearly a complex FCPA opinion. I found the affirmative policy exception fascinating and am convinced, by your treatment, that the two affirmative legislative policy exceptions in existence don’t square neatly within the FCPA context. Nonetheless, it seems that the broader objective of having affirmative legislative policy exceptions – namely, fulfilling legislative intent by restricting the application of conspiracy laws in certain cases – does apply. After all, it would seem that if you could convict foreign nationals for aiding acts of corruption abroad on the conspiracy basis, as you suggest, there would no clear reason to have limited the application of the FCPA in the first place. If the Legislature wanted to ensure certain foreign individuals didn’t face a specific criminal charge when their wrongful acts occurred abroad– by explicitly excluding them from the FCPA – it seems at least practical to say that conspiracy laws weren’t meant to apply to them either for the same activity.
I totally get what you’re saying, and I think the same kind of impulse influenced the Hopkins court’s resolution of the case. Furthermore, as I note at the end of the post, I’m open to the argument that something about the combination of the concern about extraterritorial application and the express limitations in the FCPA to its jurisdiction over foreign nationals may justify the outcome of the case.
That said, I think you may be (subconsciously) cooking the books a bit when you say, as a premise of the argument, that Congress “wanted to ensure certain foreign individuals didn’t face a specific criminal charge when their wrongful acts occurred abroad.” That’s certainly one way to put it, and framed that way it does seem like using the conspiracy/complicity statutes would be an end run around that congressional choice. But there’s another way to frame what Congress chose to do: it decided that only certain classes of individuals (US issuers & US domestic concerns, their US agents (anywhere), their foreign agents (if they make use of some instrumentality of interstate commerce, and other foreigners if they act within US territory) could directly violate the FCPA’s anti-bribery provisions. OK, fine — but that doesn’t necessarily tell us anything about whether Congress intended to preclude the possibility that some actor falling _outside_ all of those categories, and so couldn’t violate the FCPA, might nonetheless be liable as an accomplice or a co-conspirator in an FCPA violation. The usual default rule, as I note in the post, is that such liability _does_ apply even when the alleged accomplice or co-conspirator was legally incapable of committing the crime as a principal. On that understanding (which again, may not be the right one, but I think accords with the doctrine as I understand it) does not make Congress’s decision to limit direct FCPA liability meaningless, or trivial to circumvent through use of the conspiracy or complicity statutes. There still needs to be a primary FCPA violation, by some party legally capable of violating it, before we can start going after foreign nationals for complicity and conspiracy.
So I’m not sure I’m convinced that there would be “no clear reason” for Congress to have limited the scope of the FCPA to certain categories of offenders if you could still go after other offenders with conspiracy or complicity liability. There’s still a big difference: If Congress had simply said that _any_ party that had a sufficient connection to the US to satisfy due process limits on jurisdiction could be charged with an FCPA violation for bribes paid to foreign officials, then a foreign national with no connection to a US firm or US issuer, and no connection to US territory other than phone calls, emails, wire transfers, or similar, could be charged with FCPA violations for bribes paid abroad. Congress clearly wanted to exclude that possibility. The question, which still seems to me very very hard, is whether Congress _also_ wanted to exclude the possibility of charging a foreign national outside the US as an accomplice or co-conspirator in an FCPA violation by a covered party.
It is inaccurate to say or suggest (as the post does several times) that the FCPA’s anti-bribery provisions are extraterritorial as applied to non-U.S. actors.
The alternative jurisdiction prong of dd-1 does not apply to non-U.S. issuers. In other words, to violate the FCPA’s anti-bribery provisions, a non-U.S. actor may be subject to dd-1 which requires “use of the mails or any means or instrumentality of interstate commerce” or dd-2 which requires an even more demanding standard of ” while in the territory of the United States.”
Professor Mike Koehler
The final prong of the above comment should say dd-3, not dd-2.
Fair enough. You’re right that the application of the FCPA’s anti-bribery provisions to the non-US agents of US firms or US issuers under dd-1 or dd-2 requires use of an instrumentality of interstate commerce, which creates a territorial jurisdictional hook. When jurisdiction is asserted over a foreign person in this category on the basis of, say, phone calls, emails, or wire transfers to, from, or routed through the US, courts and commentators sometimes refer to such jurisdiction as “extraterritorial,” but you’re right that it’s not really totally extraterritorial (in contrast to the “alternative jurisdiction” provisions of dd-1 and dd-2, which do authorize purely extraterritorial jurisdiction over US persons acting as agents of US issuers or US domestic concerns). Indeed, the Hoskins court itself does this, when it suggests that the FCPA could apply “extraterritorially” to Mr. Hoskins if the government can show he was acting as an agent of a US domestic concern–presumably on the basis of telephone or email contact he had with US parties.
So, yes, you’re right that I was eliding the distinction between genuine/pure extraterritorial jurisdiction, and jurisdiction over a foreign national based on (perhaps quite limited) email, telephone, or financial contact with the US.
I suppose the question is whether anything of substance turns on this, since the FCPA is clearly applies to conduct outside the US when conducted by US firms and their US agents, and so under ordinary complicity/conspiracy principles, that sort of liability can attach to conduct outside the US. But I need to mull on this further. Perhaps the existence of the alternative jurisdiction provisions of dd-1 and dd-2 (which, so far as I can tell, the Hoskins opinion doesn’t mention) provides a stronger justification for the court’s holding.
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A practicing lawyer with expertise in this area, who must comment anonymously due to her current professional position, has this to say about my post:
“I agree that it is a tough case and that the reasoning leaves much to be desired, but I do think the result was correct.
“First, there is a straightforward reason why the presumption against extraterritoriality doesn’t decide Hoskins: it doesn’t apply. The presumption operates on congressional silence, on the theory that Congress doesn’t legislate extraterritorially without some affirmative indication. Here Congress explicitly and thoroughly provided for extraterritorial application of the FCPA. And, as you point out in the post, we already know that the federal conspiracy statute can apply to extraterritorial acts if the substantive offense can. This is really just another spin on what you get at in the post.
“Second, I disagree somewhat about how narrow the ‘affirmative legislative policy’ exception is. For one, there is a way to read Gebardi on the Mann Act that is not only about acquiescence but also understanding the way an offense often/normally plays out and what Congress meant to criminalize (or not) with that typical activity in mind. While the affirmative legislative policy idea hasn’t been widely developed, that’s likely because defining statutory offenses in a way that would even arguably leave out participants in the underlying activity is relatively rare. Two relevant examples, it seems to me, are U.S. v. Shear, 962 F.2d 488 (5th Cir. 1992), and U.S. v. Doig, 950 F.2d 411 (7th Cir. 1991). Both say that employees cannot be held liable for aiding an OSHA criminal offense that applies only to employers — that is, like the FCPA, the crime is defined in part by who can commit it. These don’t fall within either of the categories you identify as the ‘traditional’ affirmative legislative policy territory. They do, like Hoskins, try to get at likely congressional intent and treat the affirmative limitation to certain individuals as telling — sort of an expressio unius argument. While Hoskins makes this more complex than necessary, I do think allowing conspiracy for otherwise excluded individuals creates a massive loophole that is hard to square with the detailed text of the FCPA.”
Great, thanks very much for your comments!
On your first point, we’re obviously in agreement, so I won’t belabor it except to say that it’s something of a relief to know that at least on this point someone who really knows what she’s talking about thinks I’m basically right.
On your second point, here we obviously disagree–which makes me nervous. I wasn’t aware of the OSHA cases, so thanks very much for bringing them to my attention. I’ve only had time to read them fairly quickly, so my “hot take” might well be misinformed, but on a quick read I actually think their reasoning is basically a variant of the logic applied under the “kingpin” statutes, though I admit it’s not quite the same because in the OSHA context it’s not the simple fact of _being_ the boss that’s criminalized. But other than that, I think the cases are pretty similar: In both contexts, Congress has enacted laws that apply to anyone in the enterprise, but then also has special rules that apply only to the bosses (the “employer” in the OSHA context). But because we’re dealing, by definition, with enterprises (illegal enterprises in the case of the kingpin statute, legal enterprises in the case of OSHA), the bosses act through employees, and if we treat all of those employees as vicariously liable (as principals) via the complicity statute, then Congress’s decision to single out the heads of the enterprises for special, different rules would be undone. The Shear case in particular seems pretty explicit about this: saying “all persons” (employers and employees) have to comply with rules A, B, and C, but only “employers” have to comply with rule D–even though pretty much all employer violations of rule D will involve the cooperation of employees–seems pretty clearly to imply that we can’t use the complicity statute to say that employees are _also_ liable for violating rule D.
To me that seems distinguishable from the ordinary mine-run of criminal statutes that limit liability to certain classes of potential offenders, and my instinct is that the FCPA is more similar to those statutes than to OSHA in this regard. But as I try to keep repeating, my views on this are tentative and perhaps uninformed, so I’d be open to challenge or correction on any or all of this.
You write: “I suppose the question is whether anything of substance turns on this …”.
The entire case and the DOJ’s theory of prosecution hinges on it.
Could you clarify what you mean? From my reading of Hoskins, I was under the impression that the prosecution’s theory of the case was that: (1) US nationals bribed foreign government officials, in violation of dd-2 (or 1, if the firm is an issuer); (2) Hoskins, though not directly liable for FCPA violations (because outside the scope of dd-3 and the alternative jurisdiction clauses of dd-1&2) aided and abetted the US actors who violated the FCPA (within the meaning of s2), and conspired with them (within the meaning of s371); and (3) because the statute regulating primary conduct (dd-1/2) is extraterritorial with respect to those actors who could/did violate dd-1/2 (the US actors), the complicity and conspiracy statutes are extraterritorial with respect to _anyone_ who acts as an accomplice or co-conspirator, regardless of whether they did (or legally could) violate the underlying criminal statute itself.
That strikes me as a very hard question, for the reasons I elaborate in the post, but it’s not immediately why the answer (or DOJ’s theory of the case) turns on whether a foreign national acting abroad can directly violate dd-1/2. As I also said in the post, I’m well aware that I could be wrong about this, especially since I’m not an expert in criminal law and don’t follow these FCPA cases nearly as closely as you do. In the interests of moving the conversation forward and educating our readers, would you mind elaborating on your claim that the prosecution’s whole theory turns on whether the FCPA can apply (directly) to foreign nationals acting abroad? Maybe if possible linking to the indictment (with page reference) or other materials in Hoskins that make this clear? Thanks in advance.
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