16

- 1010

- cr

United States v. Hoskins

1

UNITED STATES COURT OF APPEALS 2

FOR THE SECOND CIRCUIT 3

____________________ 4

5

August Term, 2016 6

7

( Argued: March 2, 2017 Decided: August 24, 2018 ) 8

9

Docket No

. 16

- 1010

- cr 10

11

____________________ 12

13

UNITED STATES OF AMERICA

, 14

15

Appellant

, 16

17

v. 18

19

LAWRENCE HOSKINS

, 20

21

Defendant

- Appellee

. * 22

23

____________________ 24

25

Before: KATZMANN

, Chief Judge

, P OOLER and LYNCH, Circuit Judges

. 26

27

In this interlocutory appeal from a district court ’ s dismissal of part of one 28

count in a multi

- count indictment, we are asked to decide whether the 29

government may employ theories of conspiracy or complicity to charge a 30

* The Clerk of Court is respectfully directed to amend the caption as above.2 defendant with violating the Foreign Corrupt Practices Act ( “ FCPA ” ), even if he 1

is not in the categor ies of persons directly covered by the statute

. 2

We first decide that we have jurisdiction over the appeal under 18 U.S.C. 3

§ 3731 . That statute, as amended, permits interlocutory appeals by the 4

government when a part of a count of an indictment is dismissed. 5

We then address the merits of the district court ’ s dismissal of the 6

government ’ s FCPA charges. We det ermine that the FCPA define s precisely the 7

categories of persons who may be charged for violating its provisions. The 8

statute also state s clearly the extent of its extraterritorial application. Because we 9

agree with the district court that the FCPA ’ s carefully

- drawn limitations do not 10

comport with the government ’ s use of the complicity or conspiracy statutes in 11

this case, we AFFIRM the district court ’ s ruling barring the government from 12

bringing the charge in question. We REVERSE the district court’s h olding on the 13

Second Object of the Conspiracy, because the government’s intention to prove 14

that Hoskins was an agent of a domestic concern places him squarely within the 15

terms of the statute and takes that provision outside our analysis on the other 16

counts

. 17

Affirmed in part and Reversed in part

. 183 1

JUDGE LYNCH concurs in the opinion and files a separate concurring opinion

. 2

____________________ 3

SANGITA K. RAO

, Department of Justice

(Michael J. Gustafson, First Assistant United

States Attorney, Leslie R. Caldwell, Assistant

Attorney General, David E. Novick, Assistant

United States Attorney, Sung

- Hee Suh, Deputy

Assistant Attorney General, Andrew Weissmann,

Chief, Fraud Section, Danie l S. Kahn and Jeremy

Sanders, Attorneys, Fraud Section, on the brief )

, Washington, D

. C

. , for Appellant United States of

America

.

CHRISTOPHER J. MORVI LLO

, Clifford Chance

US LLP ( Daniel Silver and Benjamin Peacock

, on

the brief ), New York, N

. Y

. , for Defendant

- Appellee

Lawrence Hoskins

.

Ira M. Feinberg and Derek Musa, on the brief

, Hogan Lovells US LLP , New York, N

. Y

., for

Amicus Curiae the New York Council of Defense

Lawyers in support of Defendant

- Appellee Lawrence

Hoskins

.

Jonathan Bach and Adam S. Gershenson, on the

brief

, Cooley LLP, New York, N.Y., for Amicus

Curiae the New York Council of Defense Lawyers in

support of Defendant

- Appellee Lawrence Hoskins

.

4

POOLER, Circuit Judge : 54 In this case, we are asked to decide whether the government may employ 1

theories of conspiracy or complicity to charge a defendant with violating the 2

Foreign Corrupt Practices Act ( “ FCPA ” ), even if he is not in the category of 3

persons directly covered by the statute

. 1 We determine that t he FCPA defined 4

precisely the categories of persons who may be charged for violating its 5

provisions. The statute also stated clearly the extent of its extraterritorial 6

app lication. 7

The FCPA establishes three clear categories of persons who are covered by 8

its provisions: (1) Issuers of securities registered pursuant to 15 U.S.C. § 78 l or 9

required to file reports under Section 78 o (d) , or any officer, director, employee, or 10

agent of such issuer, or any stockholder acting on behalf of the issuer, using 11

interstate commerce in connection with the payment of bribes, 15 U.S.C. § 78dd

12

1; (2) American companies and American persons using interstate commerce in 13

connection with the pa yment of bribes

, 15 U.S.C. § 78dd

- 2 ; and (3) foreign 14

1 Because the question before us is whether conspiracy and complicity charges

can be used to extend liability beyond the categories delineated in the statute, we

assume that Hoskins is not an agent of Alstom U.S. only for the sake of

arguments advanced on a ppeal and express no views on the scope of agency

under the FCPA.5 persons or businesses taking acts to further certain corrupt schemes, including 1

ones causing the payment of bribes, while present in the United States

, 15 U.S.C. 2

§ 78dd

– 3

. 3

Because we agree with the distr ict court that the FCPA ’ s carefully

- drawn 4

limitations do not comport with the government ’ s use of the complicity or 5

conspiracy statutes in this case , we AFFIRM the district court ’ s ruling barring the 6

government from bringing the charge in question. We REVERSE the district 7

court’s holding on the Second Object of the Conspiracy, because the 8

government’s intention to prove that Hoskins was an agent of a domestic 9

concern places him squarely within the terms of the statute and takes that 10

provision outside ou r analysis on the other counts. 11

126 BACKGROUND 1

I. The Allegations 2

T he government alleges that several defendants, including Hoskins, were 3

part of a scheme to bribe officials in Indonesia so that their company could 4

secure a $118 million contract f rom the Indonesian government. Hoskins worked 5

for Alstom S.A. (“Alstom”) , a global company headquartered in France that 6

provid es power and transportation services During the relevant time, which was 7

from 2002 to 2009, Hoskins was employed by Alstom ’ s UK su bsidiary, but was 8

assigned to work with another subsidiary called Alstom Resources M anagement, 9

which is in France. 10

The alleged bribery scheme centers on Alstom ’ s American subsidiary, 11

Alstom Power, Inc. ( “ Alstom U.S. ” ), headquartered in Connecticut. The 12

allegations are that Alstom U.S. and various individuals associated with Alstom 13

S.A. retained two consultants to bribe Indonesian officials who could help secure 14

the $118 million power contract for the company and its associates

. Hoskins 15

never worked for A lstom U.S. in a direct capacity. But the government alleges 16

that Hoskins, while working from France for Alstom Resources Management

, 17

was “ one of the people responsible for approving the selection of

, and 187 authorizing payments to, [ the consultants ]

, knowing that a portion of the 1

payments to [the consultants] was intended for Indonesian officials in exchange 2

for their influence and assistance in awarding the [ contract. ] ” Third Superseding 3

Indictment (hereinafter “Indictment”) ¶ ¶ 3, 8

. 4

The government alleges that several parts of the scheme occurred within 5

the United States. The indictment alleges that one of the consultant s kept a bank 6

account in Maryland. 2 In some cases, funds for bribes allegedly were paid from 7

bank accounts held b y A lstom and its business partners in the United States, and 8

deposited in the consultant ’ s account in Maryland , for the purpose of bribing 9

Indonesian officials

. The indictment also states that several executives of Alstom 10

U.S. held meetings within the United States regarding the bribery scheme and 11

discussed the project by phone and email while present on American soil

. 12

The government concedes that

, although Hoskins “ repeatedly e

- mailed 13

and called . . . U.S.

- based coconspirators ” regarding the scheme “ while they were 14

in the United States, ” Hoskins “ did not travel here ” while the bribery scheme 15

was ongoing. Appellant’s Br. at 7

. 16

2 Although not alleged in the indictment, the government also represents that

one consultant was “based” in Maryland

.8 II. The Indictment 1

The Third Superseding Indictment, the operative one in the case, brings 2

twelve counts against Hoskins. This appeal concerns the first seven count s of the 3

indictment

. 4

Count one charges Hoskins with conspiring to violate the FCPA. It alleges 5

that Hoskins is liable because he was an agent of Alstom U.S., an American 6

company, and, in that capacity, committed acts that violated the statute. It also 7

alleges that, independently of his agency relationship with an American 8

company, Hoskins conspired with the company and its employees, as well as 9

foreign persons, to violate the FCPA , and also aided and abetted their violations

. 10

The Count focuses on two objects of the conspiracy, which correspond to two 11

provisions of the FCPA that Hoskins supposedly violated as an accomplice and 12

also conspired to violate . The first of the two FCPA provision s prohibits 13

American companies and American persons , as well as their agents, from using 14

interstate commerce in connection with the payment of bribes . 15 U.S.C. § 78dd

15

2. The second prohibits foreign persons or businesses from taking acts to further 16

certain corrupt schemes , including ones causing the payment of bribes, while 17

present in the United States. 15 U.S.C. 189 § 78dd

– 3

. 1

Counts two through seven charge substantive violations of the FCPA, 2

focusing on particular wire transfers from Alstom U.S. ’ s bank account to the 3

consultants ’ accounts

. These counts all charge Hoskins with violations of 15 4

U.S.C. § 78dd

- 2 . The counts allege that Hoskins violated this provision as “ an 5

agent ” of an American company or person, and also “ by aiding and abetting ” 6

such a company or person. 3 7

III. Proceedings Below 8

Before the district court Hoskins moved for dismissal of the first count of 9

the indictment. See United States v. Hoskins , 123 F. Supp. 3d 316 (D. Conn. 2015)

. 10

He noted that the FCPA prescribes liability only for narrowly

- circumscribed 11

groups of people

— American companies and citizens, and their agents, 12

employees, officers, directors, and shareholders, as well as foreign persons acting 13

on American soil. Hoskins argued that the governmen t could not circumvent 14

those limitations by charging him with conspiring to violate the FCPA, or aiding 15

3 The remainder of the indictment, which is not at issue in this appeal, charges

Hoskins with one count of conspiracy to commit money, and four counts of

money laundering.10 and abetting a violation of it, if he did not fit into one of the statute ’ s categories of 1

defendants. H e thus moved for dismissal of Count One , as it ch arged that he was 2

liable even if he did not fit into one of the statute ’ s categories

. Hoskins , 123 F. 3

Supp. 3d at 317 , 319

. 4

The government filed a closely

- related motion in limine regarding Counts 5

Two through S even. Id. at 317. The motion sought to preclude Hoskins from 6

arguing at trial that he could only be convicted of violating the statute under a 7

conspiracy or aiding

- and

- abetting theory if the government first proved that he 8

fell within one of the FCPA ’ s enumerated categories of defendants. 9

The district court granted Hoskins ’ s motion in part and denied the 10

government ’ s motion. See i d. at 327. The court explained that, under Gebardi v. 11

United States , 287 U.S. 112 (1932)

, “ where Congress chooses to exclude a class of 12

individuals from liability under a statute, the Executive may not override the 13

Congressional intent not to prosecute that party by charging it with conspiring to 14

violate a statute that it could not directly viol ate. ” Hoskins , 123 F. Supp. 3d at 321 15

(internal quotation marks and alterations omitted). Upon a thorough 16

consideration of the text, structure, and legislative history of the FCPA, the 17

district court concluded that “ Congress did not intend to impose accomp lice 1811 liability on non

- resident foreign nationals who were not subject to direct 1

liability ” under one of the statute ’ s provisions. Id. at 327. 2

The court thus dismissed Count One of the indictment to the extent that it 3

sought to charge Hoskins with conspir ing to violat e Section 78dd

- 2 of the FCPA 4

without demonstrating that Hoskins fell into one of the FCPA’s enumerated 5

categories

. Id. The court also dismissed Count One to the extent it alleged that 6

Hoskins conspired to violate Section 78dd

- 3, which prohibits acts “ while in the 7

territory of the United States

, ” because Hoskins had never entered the United 8

States during the relevant period

. Id. at 327 n.14 ( “ [I] f Congress intended to limit 9

liability under this section to those within the territory of the United States, the 10

Government cannot circumvent this intention by resort to the conspiracy 11

statute. ” )

. The district court denied Hoskins’s motion in part , however, because 12

the indictment charged him with conspiring to violate the FCPA, or aiding and 13

abetting a violation, as an agent of an American company , a category covered by 14

Section 78dd

- 2

. Id. at 318 n.1, 327. The court also denied the g overnment ’ s motion 15

in limine. Id. at 327. 16

The government appeals all of the district court ’ s rulings. 17

DISCUSSION 1812 I. Jurisdiction under 18 U.S.C. § 3731 1

Hoskins first argues that the court has no jurisdiction over this 2

interlocutory appeal. In t he government ’ s view, the court has jurisdiction under 3

18 U.S.C. § 3731, which permits the United States certain interlocutory appeals in 4

criminal cases. The statute reads as follows: 5

In a criminal case an appeal by the United States shall lie to a court 6

of appeals fro m a decision, judgment, or order of a district court 7

dismissing an indictment or information or granting a new trial after 8

verdict or judgment, as to any one or more counts, or any part 9

thereof, except that no appeal shall lie where the double jeopardy 10

cla use of the United States Constitution prohibits further 11

prosecution. . . . The provisions of this section shall be liberally 12

construed to effectuate its purposes. 13

18 U.S.C. § 3731. The previous version of Section 3731 did not include the phrase 14

“or any par t thereof,” which was added by Congress in 2002. The legislative 15

history of the provision makes clear that, in making the change , Congress 16

intended to broaden the scope of interlocutory appeals the government could 17

bring: 18

This section clarifies that 18 U.S.C. § 3731 authorizes an appeal by 19

the United States, consistent with the Double Jeopardy clause, 20

whenever a district court enters an order dismissing or striking part 21

of an indictment or information. . . . [The pre

- 2002 v ersion of] the 22

statute has generally been generously interpreted to allow 23

government appeals, even when its literal language does not clearly 2413 extend to the case, such as where a district court has dismissed only 1

a portion of a count such as a predicate act in a RICO count or an 2

overt act in a conspiracy count.

. . . However, one federal circuit has 3

held that section 3731 does not permit any government appeals from 4

the dismissal of only part of a count. See United States v. Louisiana 5

Pacific Corporation , 106 F.3d 345 (10th Cir. 1997). In other cases, 6

appellate review of orders dismissing predicate acts or overt acts has 7

been denied where the dismissed acts could not themselves have 8

been charged in separate counts. See United States v. Terry , 5 F.3d 874 9

(5th C ir. 1993); United States v. Tom , 787 F.2d 65 (2d Cir. 1986). 10

It is time to resolve these conflicting results definitively. The reach of 11

section 3731 should clearly be extended to orders dismissing 12

portions of counts. Although the Solicitor General, who must 13

approve all appeals by the United States to a court of appeals, only 14

seldom authorizes appeals from partial dismissals of counts in 15

criminal cases, there is no reason not to permit the government to 16

appeal when the issue involved is important and dete rmined by the 17

Solicitor General to be worthy of presentation to a higher court. 18

Indeed, there are some cases where the dismissal of a predicate act 19

or overt act may substantially weaken the government ’ s ability to 20

prove its case. The proposed amendment wou ld therefore insert the 21

phrase “ or any part thereof ” in section 3731 so as to make clear that 22

dismissals of any part of a count are subject to appeal by the United 23

States in appropriate circumstances. 24

H.R. Rep. No. 107

- 685, at 188 (2002) (Conf. Rep.)

, rep rinted in 2002 U.S.C.C.A.N. 25

1120, 1140

- 41 (hereinafter “2002 Conference Report”)

. Following the 2002 26

amendment, the First and Ninth Circuits have recognized the statute ’ s clear 27

reach over government requests to appeal dismissals of portions of counts in an 28

indictment. United States v. DeCologero , 364 F.3d 12, 20 (1st Cir. 2004) ( “ The first 2914 paragraph of the statute allows (in pertinent part) an appeal from a district 1

court ’ s dismissal of an indictment ‘ as to any one or more counts, or any part 2

thereof ’

— the ‘ any part ’ language having been added in 2002 in part to resolve a 3

circuit split

. . . . ” (quoting 18 U.S.C. § 3731 (2003 ) ); United States v. Morales , 465 F. 4

App ’ x 734, 736 (9th Cir. 2012) ( “ The statute was amended in 2002 to permit 5

appeals from any “ order of a district court [

. . . ] dismissing an indictment [

. . . ] 6

or any part thereof. ” ). 7

Hosk ins argues, based on our rulings in United States v. Margiotta , 662 F.2d 8

131 (2d Cir. 1981) , and United States v. Tom , 787 F.2d 65 (2d Cir. 1986) , that the 9

court lacks jurisdiction to hear the appeal under Section 3731. Margiotta and Tom 10

laid down the rule that “ the Government may appeal when an order precludes 11

consideration of an independent ground for a conviction. ” Tom , 787 F.2d at 70 12

(internal quotation mar k s omitted)

. This rule permitted some appeals when a 13

district court dismissed something less than a full count of an indictment. We 14

explained that “ an independent ground f or a conviction ” need not always be 15

“ formally pleaded as a separate count in the indictment

, ” Margiotta , 662 F.2d at 16

140, and that dismissal of a “ ground for a conviction ” would be appealable even 17

if not set out as a separate count. 1815 But , under the rule stated in Margiotta and Tom dismissal of a theory of 1

liability did not always remove a separate ground for a conviction, and thus did 2

not always give rise to a government appeal. As long as some path remained for 3

the defendant to be convic ted under a given charge, the appeal was 4

impermissible. For example, i n Margiotta , we did not allow the government to 5

appeal from the district court ’ s dismissal of the theory that the defendant was 6

liable as a principal for violation of the Hobbs Act when he was also charged 7

with aiding and abetting Hobbs Act violations

. Id. at 141. We reasoned that 8

“ [a] ider and abettor activity

. . . is

. . . punishable

. . . to the same ex tent as activity 9

of a principal, ” and so “ the court ’ s jury instruction concerning the Hobbs Act 10

charges does not strike from the case an independent basis of liability

. ” Id. 11

Similarly, in Tom

, we dismissed an appeal from a district court ’ s dismissal of 12

some, but not all, allegations of racketeering acts tha t undergirded a charge 13

under the Racketeer Influenced and Corrupt Organizations Act (“RICO Act”)

. 14

787 F.2d at 67, 71. 15

In light of Congress ’ s 2002 amendments to Section 3731

, Tom and Margiotta 16

are no longer authoritative regarding appeals from dismissals of portions of 17

indictments. First, Congress ’ s statement that appeals may be taken from 1816 dismissal of “ any part ” of a count of an indictment plainly conflicts with the rules 1

stated in those cases

, which did not permit appeals from dismissals of some parts 2

of indictments. Second, the 2002 Conference Report rejected the rule established 3

in Tom

. See 2002 Conference Report at 188. Given that Margiotta and Tom stated 4

the same rule, Congress ’ s displeasure with both cases can be understood from 5

the Conference Report. 6

Under the revised version of Section 3731 , th e government ’ s appeal in this 7

case may go forward

. The district court dismiss ed portions of the indictment 8

charging Hoskins with conspiracy to violate 15 U.S.C. § 78dd

– 2 , or violation of 9

that provision as an accomplice, to the extent that the government could not also 10

show Hoskins was an agent of an American company or person , or a director, 11

employee, or stockholder of an American c ompany

. Hoskins , 123 F. Supp. 3d at 12

317 , 327. Additionally, the court dismissed part of the indictment alleging that he 13

conspired to violate 15 U.S.C. § 78dd

– 3 , or violated that provision as an 14

accomplice

, because the government conceded that the defendant did not enter 15

the United States during the relevant time period

. Id. at 327 n.14. Although the 16

court did not dismiss an entire count of the indictment, it dismissed two 17

significant parts of a count. That suffices for an appeal

, given Congress ’ s 1817 statement that review may be sought after dismissal of “ any part ” of a count of 1

an indictment. 2

Because we have jurisdiction under 18 U.S.C. § 3731 to review the 3

dismissal of portions of Count One, we will exercise pendent appellate 4

jurisdiction to revi ew the district court ’ s denial of the government ’ s motion in 5

limine. The doctrine of pendent appellate jurisdiction permits review of “ all 6

matters inextricably bound up with ” an issue over which the court has 7

jurisdiction. Lamar Adver t . of Penn, LLC v. Town of Orchard Park, N.Y. , 356 F.3d 8

365, 371 (2d Cir. 2004) ; see also United States v. Zabawa , 39 F.3d 279, 283 (10th Cir. 9

1994) (applying rules of pendent appellate jurisdiction to appeal taken under 18 10

U.S.C. § 3731) . Because “ the dist rict court here denied ” the government ’ s motion 11

in limine “ for the very same reasons ” that it granted in part Hoskins ’ s motion to 12

dismiss the indictment, the issues “ are indeed inextricably intertwined with [the 13

issues] over which we have appellate jurisdiction

. ” Lamar , 356 F.3d at 372. And 14

because “ [i] t is surely in the interest of judicial economy ” to consider both of the 15

motions in the same appeal, we will do so. Id. 16

II. The FCPA and the First Object of the Conspiracy 1718 The central question of the appeal is whether Hoskins, a foreign national 1

who never set foot in th e United States or worked for an American company 2

during the alleged scheme, may be held liable

, u nder a conspiracy or complicity 3

theory , for violating FCPA p rovisions targeting American persons and 4

companies and their agents

, officers, directors, employees, and shareholders, and 5

persons physically present within the United States

. In other words, can a pers on 6

be guilty as an accomplice or a co

- conspirator for a n FCPA crime that he or she is 7

incapab le of committing as a principal? 8

A. Conspiracy Liability 9

For purposes of this appeal , we assume that Hoskins was neither an 10

employee nor an agent of a domestic concern and therefore does not fall w ithi n 11

the terms of the statute. But accomplice and conspiracy liability are generally not 12

so limited. A get

- away driver for a bank robbery team can still be prosecuted 13

even though he has not “by force and violence . . . take[n] . . . from the person or 14

pre sence of another . . . any property . . . belonging to . . . any bank. ” 18 U.S.C. 15

§ 2113(a). As the common law has long recognized, persons who intentionally 16

direct or facilitate the crimes physically executed by others must be held 17

accountable for their actions. This recognition was effectuated by developing the 1819 doctrines of conspiracy and complicity, principles that are now codified in 1

statutes. Under 18 U.S.C. § 2 (a) , a person who does not personally commit the 2

acts constituting an offense is liable as a principal if he or she “aids, abets, 3

counsels, commands, induces or produces” the commission of those acts by 4

another. In addition, 18 U.S.C. § 371 punishes anyone who “conspire [s]” with 5

another to commit the offense. Thus, by the plain language of the general statutes 6

regarding conspiracy and accessorial liability

— which nothing in the language of 7

the FCPA purports to overrule or limit

— if Hoskins did what the indictment 8

charges, he would appear to be guilty of conspiracy to violate the FCPA and (as 9

an accomplice) of substantive violations of that statute. 10

Conspiracy and complicity statutes do not cease to apply simply because a 11

statute specifies particular classes of people who can violate the law. It is well 12

established in federal criminal law that “[a] person . . . may be liable for 13

conspiracy even though he was incapable of committing the substantive 14

offense.” Salinas v. United States , 522 U.S. 52, 64 (1998). That principle wa s already 15

deeply ingrained when the Supreme Court unanimously ruled in 1915 that 16

persons not themselves bankrupt could be guilty of conspiring with someone 17

who had declared bankruptcy to hide assets of the bankrupt’s estate from the 1820 bankruptcy trustee, eve n if a non

- bankrupt party could not be convicted of the 1

principal offense. United States v. Rabinowich , 238 U.S. 78, 86 (1915). With respect 2

to complicity, the same principal was so clearly entrenched as a matter of the 3

common law of crimes that the Suprem e Court saw no need to cite a particular 4

precedent when it unanimously recognized in 1833 that someone who 5

“procure[d], advise[d] and assist[ed]” a postmaster to remove from the mail and 6

destroy a letter was guilty of violating, as an accomplice, a statute prohibiting 7

postal employees from taking mail entrusted to them for delivery. United States v. 8

Mills , 32 U.S. 138, 141 (1833). 9

Thus the firm baseline rule with respect to both conspiracy and complicity 10

is that where the crime is so defined that only cert ain categories of persons, such 11

as employees of a particular sort of entity, may commit the crime through their 12

own acts, persons not within those categories can be guilty of conspiring to 13

commit the crime or of the substantive crime itself as an accomplic e. 4 14

4 See American Law Institute, Model Penal Code and Commentaries, § 2.06 at 323

(1985) (“Many crimes are designed to control the conduct of person s who occu py

special positions, and thus can only be committed by those who actually occupy

the designated position. It is universally held, on the other hand, that one who

assists an occupant of the designated position in the commission of the offense21 Longstanding principle and precedent thus reinforces what the plain language of 1

the conspiracy and aiding and abetting statutes command. 2

B. The Affirmative

- Legislative

- Policy Exception 3

There is a narrowly circumscribed exception to this common

- law principle

. 4

In certain cases it is clear from the structure of a legislative scheme that the 5

lawmaker must have intended that accomplice liability not extend to certain 6

persons whose conduct might otherwise fall within the gene ral common

- law or 7

statutory definition of complicity. A classic illustration is statutory rape, which 8

makes it a crime to have sexual relations with a person who is under a statutorily 9

defined age of consent. Applying the literal definitions of accomplice liability, a 10

youthful participant who voluntarily consents to the act would be guilty of rape 11

as well, because he or she intentionally aided or solicited the commission of the 12

criminal ac t. But the legislature, in criminalizing the conduct of the adult 13

par ticipant and not that of the juvenile, obviously conceptualized the under

- age 14

party as the victim of the crime, and not a co

- participant. Despite the common

15

law recognition of conspiracy and accomplice liability, and of the general 16

can neverthel ess be held as an accomplice. Common sense requires this result in

the normal case.”)

.22 principle that one could be guilty as a conspirator or accomplice even if the 1

statute were defined in such a way that one was not capable of committing it as a 2

principal, the common

- law courts had no difficulty in recognizing an exception 3

in those circumstances. See, e.g.

, Regina v. Tyrell , [1894] 1 Q.B. 710. 4

Here the government concedes that the common

- law principle of 5

conspiracy liability admits of exceptions but argues that the FCPA falls outside 6

those exceptions. Hoskins, by contrast, contends that the FCPA demonstrate s “an 7

affirmative Congressional intent to exclude certain persons from liability ” under 8

the statute. Appellee’s Br. at 20 (emphasis omitted). The parties’ dispute focuses 9

on two cases, Gebardi v. United States , 287 U.S. 112 (1932)

, and United States v. 10

Amen , 831 F.2d 373 (2d Cir. 1987 ), and it is thus profitable to consider both in 11

some detail. 12

1. Gebardi 13

In Gebardi , the Supreme Court considered a conviction under the Mann 14

Act, a statute that imposes a penalty upon 15

a ny person who shall knowingly transport or cause to be 16

transported, or aid or assist in obtaining transportation for, or in 17

transporting, in interstate or foreign commerce any woman or girl 18

for the purpose of prostitution or debauchery, or for any other 19

immoral purpose. 2023 287 U.S. at 118 (quoting 18 U.S.C. § 398 (1932)) . The Mann Act criminalizes such 1

transportation “ with or without [the woman ’ s] consent. ” Id. The government 2

convicted both a man and woman for conspiracy to violate the Mann Act, on the 3

theory that the woman conspired to tr ansport a person

— herself

— merely by 4

consenting to the man ’ s transportation of her. 5

The Supreme Cour t reversed the conviction s . The Court first noted that the 6

Mann Act plainly covered cases where “ the woman consents to her own 7

transportation, ” rather than just cases where her transportation was forced, 8

“ [y]et it does not specifically impose any penalty upon her, although it deals in 9

detail with the person by whom she is transported. ” Id. at 119. Because it would 10

be obvious that women would part icipate in many violations of the statute

, but 11

the statute discussed no punishment for the women

, the Court concluded that 12

Congress i ntended for the wom e n not to be liable for at least some class of 13

violations of the Act

. In particular, the Court determined it could not “ infer that 14

the mere acquiescence of the woman transported was intended to be condemned 15

by the general language punishing those who ai d and assist the transporter. ” Id. 16

“ The penalties of the statute are too clearly directed against the acts of the 1724 transporter ” to support the view that Congress intended the woman always to be 1

liable

. Id. 2

Having decided that Congress intended to leave the woman unpunished 3

when she merely acquiesced in her own illegal transportation, the Court next 4

con sidered whether she could be convicted of conspiring to violate the statute in 5

such circumstances. Id. at 119

- 23. The Court concluded that she could not. The 6

Court emphasized, again, that “ Congress set out in the Mann Act to deal with 7

cases which frequentl y, if not normally, involve consent and agreement on the 8

part of the woman to the forbidden transportation, ” but that “ this 9

acquiescence

. . . was not made a crime under the Mann Act itself. ” Id. at 121. 10

Consequently, the Court “ perceive[d] in the failure of the Mann Act to condemn 11

the woman ’ s participation in those transportations which are effected with her 12

mere consent, evidence of an affirmative legislative policy to leave her 13

acquiescence unpunished. ” Id. at 123. The Court explained that it was 14

a nece ssary implication of that policy that when the Mann Act and 15

the conspiracy statute came to be construed together, as they 16

necessarily would be, the same participation which the former 17

contemplates as an inseparable incident of all cases in which the 18

woman is a voluntary agent at all, but does not punish, was not 19

automatically to be made punishable under the latter. It would 20

contravene that policy to hold that the very passage of the Mann Act 2125 effected a withdrawal by the conspiracy statute of that immunity 1

w hich the Mann Act itself confers. 2

Id. at 123. Because the defendant in Gebardi had merely consented to her 3

transportation, the Court ruled that her conviction for conspiracy could not 4

stand; and because she had not conspired to violate the Mann Act, her 5

co mpanion had no one with whom to conspire. Id. Both of their convictions for 6

conspiracy were reversed. Id. 7

In determining that the woman in Gebardi was not liable as a conspirator 8

because of Congress ’ s “ affirmative legislative policy ” to leave her unpunished, 9

id. at 123, the Gebardi Court distinguished its reasoning from an older common

10

law limitation on conspiracy liability

— a rule widely known as Wharton ’ s Rule. 11

See id

. at 121

- 22; see also Iannelli v. United States , 420 U.S. 770, 773

- 76 (1975) 12

(discussing Wharton ’ s Rule and identifying Gebardi as a case that had previously 13

discussed it). Wharton ’ s Rule states that “ [a] n agreement by two persons to 14

commit a particular crime cannot be prosecuted as a conspiracy when the crime 15

is of such a nature as to necessarily require the participation of two persons for 16

its commission

, ” such as dueling. Iannelli , 420 U.S. at 773 n.5 (quoting 1 R. 17

Anderson, Wharton ’ s Criminal Law and Procedure § 89 , at 191 (1957) ). 1826 The Court in Gebardi alluded to Wharton ’ s Rule

. See Gebardi , 287 U.S. at 1

122. But the Court stated that Wharton ’ s Rule did not apply, because the Rule 2

requires voluntary consent while “ criminal transportation under the Mann Act 3

ma y be effected without the woman ’ s consent as in cases of intimidation or 4

force

. ” Id. Consequently, the Court “ d [id] not rest [the] decision upon [Wharton ’ s 5

Rule] , nor upon the related one that the attempt is to prosecute as conspiracy acts 6

identical with the substantive offense. ” Id. at 122

- 23. Instead, the Court explicitly 7

situated its ruling “ upon the ground that we perceive in the failure of the Mann 8

Act to condemn the woman ’ s participation in those transportations which are 9

effected with her mere consent, evidence of an affirmative legislative policy to 10

leave her acquiescence unpunished. ” Id. at 123. 11

2. Amen 12

We applied the reasoning of Gebardi in United States v. Amen , 831 F.2d 373 13

(2d Cir. 1987). In Amen , the C ourt considered the “ continuing criminal 14

enterprise ” statute, 21 U.S.C. § 848, a provision “ designed to reach the ‘ top brass ’ 15

in the drug rings, ” Garrett v. United States , 471 U.S. 773, 781 (1985), or, to put it 16

differently, the “ kingpin ” in an enterprise. Amen

, 831 F.2d at 382. A defendant 17

was convicted on the theory that he conspired with

, and aided and abetted

, an 1827 enterprise ’ s “ kingpin

, ” even though the defendant himself was not the 1

“ kingpin

. ” Id. 2

The government conceded that the statute did not apply to an enterprise ’ s 3

employees. Id. at 381. It nevertheless attempted to distinguish between “ mere 4

employees and those who otherwise ‘ help ’ the kingpin, ” and to argue that “ non

5

employees who knowingly provide direct assistance to the head of the 6

organization in supervising and operating the criminal enterprise can be . . . 7

punished ” for violating the “ kingpin ” statute under conspiracy and aiding

- and

8

abetting theories. Id. at 381

- 82. 9

W e explained , however, that th e government ’ s theory “ lack [ed] support in 10

legislative history ” and “ seem [ed] totally unworkable ” because many employees 11

would provide greater assistance to the “ kingpin ” than non

- employee third 12

parties, and that it made little sense to extend the government ’ s theory to one 13

group if it concededly could not reach the other. Id. at 382. This application of 14

complicity and conspiracy would disrupt the carefully defined statutory 15

gradation of offenses; the low

- level henchman would find himself subject to the 16

more severe penalties applicable to the “kingpin.” Because the C ourt determ ined 1728 that Congress did not inten d for the “ kingpin ” statute to apply to the class of 1

individuals involved in the case, the defendant ’ s conviction was overturned

. Id. 2

3. Identifying an Affirmative Legislative Policy 3

Accepting Gebardi ’s teaching that conspiracy and complicity liability will 4

not lie when Congress demonstrates an affirmative legislative policy to leave 5

some type of participant in a cri minal transaction unpunished, 287 U.S. at 123

, 6

the question becomes how to identify suc h a policy. As the common

- law 7

principle outlined above indicates, we cannot identify such a policy whenever a 8

statute focuses on certain categories of persons at the exclusion of others. Gebardi 9

confirms this, emphasizing that its reasoning was “concerned with something 10

more than an agreement between two persons for one of them to commit an 11

offense which the other cannot commit.” Id. at 121. In Gebardi t hat “something 12

more” was a recognition that because a woman’s participation was “an 13

inseparable incident of all cases in which the woman is a voluntary agent” 14

capable of entering into a conspiracy, Congress’s silence as to the women’s 15

liability was a conferral of immunity. Id. at 121

- 23. Similarly, in Amen the Court 16

saw that the continuing criminal enterprise provision “ was designed to reach the 17

top brass in the drug rings, not the lieutenants and foot soldiers” and broadening 1829 the scope of liability with the conspiracy statute would subvert that purpose. 831 1

F.2d at 381 (brackets and internal quotation marks omitted)

. In both instances the 2

courts looked to the text of the statute and the purpose that Congress was trying 3

to achieve, thereby honoring their “ over

- arching obligation to give effect to 4

congressiona l intent ” when interpreting statutes. U nited States v. Bonanno 5

Organized Crime Family of La Cosa Nostra , 879 F.2d 20, 21 (2d Cir. 1989)

. In keeping 6

with traditional principles of statutory interpretation

, as well as the analysis 7

employed in Gebardi and its progeny, an affirmative legislative policy can be 8

discerned by looking to the statute’s text, structure, and legislative history. 5 9

4. Government ’ s Arguments for a Narrower Principle 10

The government argues for a much narrower reading of Gebardi that 11

would effectively circumscribe the ability of the courts to ascertain congressional 12

5 “Logic and precedent dictate that the starting point in every case involving

construction of a statute is the language itself.” Greyhound Corp. v. Mt. Hood

Stages, Inc. , 437 U.S. 322, 330 (1978) (brackets and internal quotation marks

omitted). “In evaluating ambiguity we look to the statutory scheme as a whole

and place the particular provision within the context of that statute.” Raila v.

United States , 355 F.3d 118 , 120 (2d Cir. 2004). “As a general matter, we may

consider reliable legislative history where, as here, the statute is susceptible to

divergent understandings and, equally important, where there exists

authoritative legislative history that assists in dis cerning what Congress actually

meant.” United States v. Gayle , 342 F.3d 89, 94 (2d Cir. 2003).30 intent in enacting criminal statutes. The government argues that Gebardi 1

forecloses liability for conspiracy or complicity only when (1) “ the defendant ’ s 2

consent or a cquiescence is inherent in the [substantive] offense, ” or (2) “ the 3

defendant ’ s participation in the crime is frequently, if not normally a feature of 4

the [substantive] criminal conduct. ” Appellant ’ s Opening Br. at 24 (internal 5

quotation marks omitted )

. 6

A number of problems arise with either of these narrow readings of 7

Gebardi

. The government ’ s first reading of Gebardi is foreclosed because, at least 8

in the conspiracy context, it is the same as Wharton ’ s Rule. As noted, where a 9

substantive offense requires persons to agree in order to commit it, Wharton ’ s 10

Rule disallows liability for conspiracy based on the same agreement required for 11

the substantive crime. See Iannelli , 420 U.S. at 773. Here, the government suggests 12

that we should read the Gebardi principl e to mean the same thing: that liability 13

for conspiracy is barred when “ the defendant ’ s consent or acquiescence is 14

inhere nt in the [substantive] offense. ” Appellant ’ s Opening Br. at 24 (internal 15

quotation marks omitted )

. The opinion in Gebardi explicitly stated that its 1631 reasoning was not based on Wharton ’ s Rule ; thus that cannot be the basis for the 1

exception

. Gebardi , 287 U.S. at 122

- 23

. 6 2

The government ’ s argument that the exception is limited to situations 3

where the defendant ’ s conduct is inherent in the substantive offense is also 4

inconsistent with Amen . O ur holding in Amen , which considered an individual 5

who was not an employee of the criminal enterprise, did not turn on the fact that 6

the defendant was essential to the existence of the cr iminal transaction under 7

consideration. Amen , 831 F.2d at 381. Although a “ criminal enterprise ” with a 8

“ kingpin ” must have employees, and such employees are thus essential to the 9

statute ’ s application, the enterprise need not work with non

- employee third 10

p arties. Amen held that the “ kingpin ” statute did not apply to third parties, and 11

6 Wharton’s Rule applies only to conspiracy, which means that there could be

daylight between it and the government’s proposed rule that neither conspiracy

nor c omplicity liability will lie where “the defendant’s consent or acquiescence is

inherent in the [substantive] offense

. ” Appellant’s Opening Br. at 24 (internal

quotation marks omitted)

. But within Gebardi itself, the government’s proposed

rule would have op erated identically to Wharton’s Rule, since Gebardi dealt only

with a conspiracy charge. And since the Supreme Court said in Gebardi that it

was not relying on Wharton’s Rule, the government’s rule cannot be defended as

the rule the Supreme Court meant to adopt.32 did so based on the intentions of Congress rather than because third parties were 1

required for a criminal enterprise to exist. See id. at 382. 2

Second, we do not share the government ’ s view that Gebardi asks whether 3

a certain type of defendant ’ s conduct is “ frequently

, if not normally ” involved in 4

an offense. Gebardi , 287 U.S. at 121. With respect to the statute giving rise to 5

Gebardi

— the Mann Act

— there was no question that a woman ’ s participation in 6

the crime was “ frequently, if not normally ” a feature of a violation

. Indeed, a 7

woman ’ s participation, either willing or unwilling, was requir ed in every 8

violation. But the Court did not merely ask whether her involvement was 9

“ frequently, if not normally ” a feature of a violation; instead, the Court discerned 10

the legislative policy of the Mann Act, and provided immunity only to the extent 11

it comported with the Act ’ s policy. Id. at 123. 12

Indeed, i n United States v. Holte , 236 U.S. 140 (1915)

, a predecessor case to 13

Gebardi , the Court explicitly held that a woman could be found guilty for 14

conspiring to violate the Mann Act. The Court described a hypothetical case 15

where immunity would not be appropriate: 16

Suppose, for instance, that a professional prostitute, as well able to 17

look out for herself as was the man, should suggest and carry out a 18

journey within the [Mann Act] in the hope of black

- mail ing the man, 1933 and should buy the railroad tickets, or should pay the fare from 1

Jersey City to New York,

- she would be within the letter of the 2

[Mann Act] , and we see no reason why the act should not be held to 3

apply. We see equally little reason for not trea ting the preliminary 4

agreement as a conspiracy that the law can reach, if we abandon the 5

illusion that the woman always is the victim. 6

236 U.S. at 145. The Court ’ s analysis in Holte , much like in Gebardi

, did not merely 7

ask whether a woman would “ frequently if not normally ” be present for 8

violations of the Mann Act . Instead, the Court determine d Congress ’ s policy in 9

enacting the statute, and limited liability consistent with that policy. To be sure, 10

the fact that a woman was invariably part of a vi olation of the Act was relevant 11

in discerning congressional policy

. But the rule the Holte Court adopted was 12

much more nuanced than could be justified by simply observing those offenses 13

for which women would be present: by definition, a woman ’ s presence wa s 14

required for every violation of the Act. 15

Finally, the government relies on Ocasio v. United States

, 136 S. Ct. 1423 16

(2016)

, a recent decision that it believes to have drawn narrowly the exception 17

exemplified by Gebardi

. The opinion in Ocasio considered an incident of bribery 18

charged under the Hobbs Act, and a charge of conspiracy to violate the Hobbs 19

Act by paying the same bribe. 136 S. Ct. at 142 7 . Although the language of the 2034 Hobbs Act prohibits “ extortion ” committed by “ the obtaining of property from 1

another, with his consen t . . . under color of official right

, ” 18 U.S.C. § 1951 (b)(2)

, 2

the Supreme Court has held that this tortured language is best understood as the 3

“ rough equivalent of what we would now describe as ‘ taking a bribe, ’” Oca sio

, 4

136 S. Ct. at 1428 (quoting Evans v. United States , 504 U.S. 255, 260 (1992) ). In 5

other words, the Hobbs Act ’ s text speaks as though a bribe

- payer is being 6

“ extorted, ” when, in reality, the bribe may be a consensual one paid to secure 7

some advantage. 8

The defendant in Ocasio contended, using the language of the Hobbs Act, 9

that he could not be convicted of conspiracy. He noted that the Hobbs Act 10

criminalized “ obtaining of property from another

, ” 18 U.S.C. § 1951 (b)(2) 11

(emphasis added). He then contended that a conspiracy charge was not 12

appropriate, because “ the conspirators

, ” who were the officials taking the bribe 13

and the persons paying it, “ had not agreed to obtain money from [ “ another ”

— 14

that is, from] a person who wa s not a member of the conspiracy. ” Ocasio

, 136 S. 15

Ct. at 1429 . The Court rejected this argument , explaining that it did not matter 16

that the defendants who paid the bribes “ did not have the objective of obtaining 17

money ‘ from another ’ because the money in qu estion was their own

. ” Id. at 1433. 1835 The Court simply reasoned that it was sufficient for the defendants to conspire 1

with others who would take money “ from another, ” even if that “ []other ” person 2

happened to be the conspirator himself. Id . at 1434. 3

The opinion in Ocasio emphasized that the crime in question, Hobbs Act 4

extortion, bears a meaning not readily discernible from its text. Because, as 5

noted, the statute essentially criminalizes “ taking a bribe, ” the Court was 6

unwilling to indulge the defend ant ’ s argument that the text indicated an 7

affirmative legislative policy to leave the “ extorted ” party unpunished , or a 8

desire to punish only the party taking property “ from another

. ” 136 S. Ct. at 9

1435

- 36. 10

Although Ocasio arose in a setting where a statute ’ s language arguably 11

suggested that certain persons are spared from liability, the unique features of 12

Hobbs Act extortion limit Ocasio ’ s helpfulness to the government

. Because the 13

Supreme Court did not agree that the Hobb s Act manifested the “something 14

more” present in Gebardi , namely any intention to limit liability for the payer of a 15

bribe, the Court rejected the argument that conspiracy liability should be 16

circumscribed based on any such limitation. Id. at 1434

- 35 ( “ The subtext of 17

[defendant ’ s] arguments is that it seems unnatural to prosecute bribery on the 1836 basis of a statute prohibiting ‘ extortion, ’ but this Court held in Evans that Hobbs 1

Act extortion ‘under color of official right’ includes the rough equivalent of what 2

we would now describe as ‘ taking a bribe. ’ . . . [W]e have no occasion to 3

[overrule Evans .] ” (internal quotation marks and citations omitted)). 4

Consequently, the case does not demonstrate a narrowing of the affirmative

5

legislative

- policy exception , b ut simply a situation where there w as no 6

affirmative legislative policy to leave the bribe payers unpunished . Moreover, 7

Ocasio ’ s independent ruling that incapacity to commit a substantive offense does 8

not, without more, preclude conspiracy or complicity c harges, is merely a 9

reaffirmation of the common

- law principle addressed above, not an abdication of 10

the affirmative

- legislative

- policy exception

. 11

C. The Affirmative Legislative Policy Regarding the FCPA ’ s Coverage 12

13

Applying the teachings of Gebardi and Amen to the FCPA, we find the 14

“something more” that evinces an affirmative legislative policy to leave the 15

category of defendants omitted from the statutory framework unpunished. In 16

particular, the carefully tailored text of the statute, read against the b ackdrop of a 17

well

- established principle that U.S. law does not apply extraterritorially without 18

express congressional authorization and a legislative history reflecting that 1937 Congress drew lines in the FCPA out of specific concern about the scope of 1

extraterritorial application of the statute, persuades us that Congress did not 2

intend for persons outside of the statute’s carefully deli mited categories to be 3

subject to conspiracy or complicity liability. Our conclusion is consistent with the 4

reasoning of other courts that have addressed this question

. See United States v. 5

Castle , 925 F.2d 831 (5th Cir. 1991) ; United States v. Bodmer, 342 F. Supp. 2d 176 6

(S.D.N.Y. 2004)

. 7

1. Text of the FCPA 8

We begin with the text of the statute. Like the Mann Act, which “[did] not 9

specifically impose any penalty upon ” a woman for assisting in her own 10

transportation across state lines

, “ although it deal [t] in detail with ” other 11

persons, Gebardi

, 287 U.S. at 119, the FCPA contains no provision assigning 12

liability to persons in the defendant ’ s position

— nonresident foreign nationals

, 13

acting outside American territory , who lack an agency relationship with a U.S. 14

person , and who are not officer s , director s , employee s , or stockholder s of 15

American companies

. See 15 U.S.C. §§ 78dd

- 1; 78dd

- 2; 78dd

- 3. 16

Moreover, in Gebardi , the statute under consideration was less clear as to 17

Congress ’ s intent to exclude the defendant from liability

, compared to the 1838 FCPA ’ s utter silence regarding the class of defendants involved in this case. As 1

noted, the Mann Act placed a penalty upon “ any person who shall knowingly 2

transport or cause to be transported, or aid or assist in obtaining transportation 3

for

. . . any woman or girl for

. . . any

. . . immoral purpose

. ” Id. at 118. The 4

Supreme Court explained that, for a woman to be liable under the Mann Act, her 5

role must “ be more active than mere a greement on her part to the transportation 6

and its immoral purpose

. ” Id. at 119. But the Court stated in Gebardi

, much as it 7

did in Holte

, t hat the Mann Act would cover the woman to the extent she were to 8

“‘ aid or assist ’ some one else in transporting or in procuring transportation ” for 9

her

. Id. Thus, the statute created at least some potential for liability where a 10

woman did more than exhibiting “ mere agreement

. . . to the transportation

. ” Id. 11

In the present case, by contrast , there is no text that creates any liability 12

whatsoever for the class of persons in question. 13

2. Structure of the FCPA 14

A second piece of evidence

— the structure of the FCPA

— confirms that 15

Congress ’ s omission of the class of persons under discussion was not accidental, 16

but instead was a limitation created with surgical precision to limit its 17

jurisdictional reach

. T he statute includes specific provisions covering every other 1839 possible combination of nationality, location, and agency relation, leaving 1

ex cluded only nonresident foreign nationals outside American territory without 2

an agency relationship with a U.S. person, and who are not officers, directors, 3

employees, or stockholders of American companies. 4

The FCPA explicitly lays out several different c ategories of persons over 5

whom the government may exercise jurisdiction. First, the statute prohibits a 6

company issu ing securities regulated by federal law (an “ issuer ” ) from using 7

interstate commerce in connection with certain types of corrupt payments to 8

foreign officials

. 15 U.S.C. § 78dd

– 1(a)

. The same prohibitions apply to any 9

“ domestic concern

. ” 15 U.S.C. § 78dd

– 2(a)

. “ Domestic concern ” is a broad term 10

that covers “ any individual who is a citizen, national, or resident of the United 11

States

, ” 15 U.S .C. § 78dd

– 2( h ) (1) (A) , wherever such a person happens to be in the 12

world. It also covers most businesses

— including partnerships, sole 13

proprietorships, and unincorporated organizations

— that are organ ized under 14

state or federal law or have principal places of business in the United States. 15 15

U.S.C. § 78dd

– 2( h ) (1) (B)

. 16

Importantly, the prohibitions on issuers and domestic concerns also apply 17

to “ any officer, director, employee, or agent of ” the entity, “ or any stockholder 1840 thereof actin g on behalf of ” the entity. 15 U.S.C. §§ 78dd

– 1(a), 78dd

– 2(a). The 1

statute ’ s prohibitions thus apply not only (for example) to partnerships 2

organized under state law, but also to their executives, janitors , and travel 3

agents

. And, a lthough a person must be a citizen, national, or resident of the 4

United States to be charged as a domestic concern, no similar requirement limits 5

the liability of officers, employees, or agents of domestic concerns and issuers. 6

Second, the statute prohibits “ an y person other than an issuer

. . . or a 7

domestic concern ” from using interstate commerce in furtherance of corrupt 8

payments to foreign officials, but only while the person is “ in the territory of the 9

United States

. ” 15 U.S.C. § 78dd

- 3(a). A “ person ” is “ any natural person other 10

than a national of the United States

, ” as well as any business organized under 11

foreign law. 15 U.S.C. § 78dd

- 3(f)(1). 12

In sum, these provisions provide jurisdiction over the following persons, 13

in the following scenarios: 14

(1) American citizens, nationals, and residents, regardless of whether they 15

violate the FCPA domestically or abroad ; 16

17

(2) most American companies, regardless of whether they violate the 18

FCPA domestically or abroad; 19

2041 (3) agents, employees, officers, directors, and shareholders of most 1

American companies, when they act on the company ’ s behalf, 2

regardless of whether they violate the FCPA domestically or abroad; 3

4

(4) foreign persons (including foreign nationals and most foreign 5

companies ) not within any of the aforementioned categories who 6

violate the FCPA while present in the United States. 7

The single, obvious omission is jurisdiction over a foreign national who acts 8

outside the United States, but not on behalf of an American person or co mpany 9

as an officer, director, employee, agent

, or stockholder

. 10

3. Legislative History 11

The question thus becomes whether there is “something more,” a policy 12

basis for Congress to exclude Hoskins’s category of defendants from criminal 13

liability

— something akin to the Mann Act’s decision not to punish the woman 14

who is frequently, if not normally involved in the offense or 21 U.S.C. § 848’s 15

gradation of punishment based on leadership in a cri minal enterprise. We think 16

there is. “ It is a basic premise of our legal system that, in general, United States 17

law governs domestically but does not rule the world. ” RJR Nabisco, Inc. v. 18

European Cmty. , 136 S. Ct. 2090, 2100 (2016) (internal quotation mar ks omitted). 19

C ourts will therefore not apply a U.S. law extraterritorially unless “the 20

affirmative intention of the Congress [is] clearly expressed.” E.E.O.C. v. Arabian 2142 Am. Oil Co. , 499 U.S. 244, 248 (1991). This principle stems from the risk of 1

“unintend ed clashes between our laws and those of other nations which could 2

result in international discord.” Id. The legislative history of the FCPA makes it 3

clear that Congress was attuned to these risks and carefully delimited the statute 4

accordingly

. 5

a. The F oreign C orrupt P ractices A ct of 1977 6

When President Carter took office in 1977, sponsors of the 1976 precursor 7

to the FCPA exhorted the administration to take an active approach in promoting 8

an anti

- bribery statute comparable to the 1976 bill that passed the Senate but 9

failed to pass the House

. See Mike Koehler, The Story of the Foreign Corrupt 10

Practices Act, 73 O HIO S T

. L.J. 929, 996 (2012). The Carter Administration indicated 11

its support for such a statute, and, in particular, suggested that “ spec ific criminal 12

penalties ” for acts of bribery were the correct approach to solving the problem. 13

See Foreign Corrupt Practices and Domestic and Foreign Investment Disclosure: 14

Hearing on S. 305 Before the S. Comm. o n Banking, Hous., & Urban Affairs

, 95th 15

Cong. 67 (1977) (statement of W. Michael Blumenthal, Secretary of the Treasury). 16

i. The Administration and the Senate Bill 1743 Although it hoped to pass aggressive anti

- bribery legislation, t he 1

Administration recognized that a statute focusing on criminalization, rather than 2

disclosure, required a delicate touch where extraterritorial conduct and foreign 3

nationals were concerned. The Secretary of the Treasury, W. Michael Blumenthal, 4

noted as much at a hearing before the Senate Committe e on Banking, Housing, 5

and Urban Affairs on March 16, 1977 : 6

[T] he Administration recognizes that great care must be taken with 7

an approach which makes certain t ypes of extraterritorial conduct 8

subject to our country ’ s criminal laws. Moreover, a law which 9

p rovides criminal penalties must describe the persons and acts 10

covered with a high degree of specificity in order to be enforceable, 11

to provide fair warning to American businessmen. 12

Id. at 70 Secretary Blumenthal emphasized, in particular, the Administration ’ s 13

concerns regarding the protection of foreign nationals: 14

There is a problem of extraterritoriality which needs to be carefully 15

addressed. There is also a question of insuring fairness and due 16

process, not only for American citizens but also for those foreign 17

citizens and foreign countries who may in s ome way be c ome 18

involved and whose reputations become involved in particular 19

allegations. We have to deal with the question of how we can write 20

the bill in such a way that it includes prot ections in this regard. 2144 Id. at 94 The Secretary ’ s requests, in other words, were for the Committee to 1

enact a bill that clarified the extent of liability, and that provided protection for 2

foreign persons. 3

In the initial draft of the FCPA, individual liability for bribery was 4

chargeable largely through the conspiracy and complicity statutes. In the initial 5

draft

, as in the current version of the FCPA

, there were three categories of legal 6

rules: 7

 first, obligat ions to create “ books, records, and accounts, which accurately 8

and fairly reflect t he transactions ” of the company, S. 305, 95th Cong., § 9

102(2)(A) ( as introduced Jan

. 18, 1977 ) (hereinafter “ S. 305 as Introduced ” )

, ; 10

11

 second, obligations to “ devise and maintain an adequate system of internal 12

accounting controls sufficient to provide reasonable assurances ” that 13

transactions are properly authorized and recorded

, id. at §§ 102(2)(B); and 14

15

 third, provisions prohibiting the payment of bribes to foreign offic ials, id. 16

at §§ 103

- 10 4. 17

Individual liability was discussed for the first two classes of rules

— the “ books 18

and records ” and “ internal accounting controls ” provisions. See S. 305 as 19

I ntroduced

, § 102(3) ( “ It shall be unlawful for any person, directly or indirectly, 20

to falsify, or cause to be falsified, any book, record, account, or document . . . . ” ). 21

But the anti

- bribery provision, spread over Sec tions 103 and 104, covered only 2245 bribery by an “ issuer ” or a “ domestic concern

. ” Conspicuously absent was any 1

provision creating liability for the employees of an “ issuer, ” which meant that 2

there would be no liability under a substantive provision of the statute for an 3

employee of a publicly

- traded company who approved a bribe. See S. 305 as 4

Introduced

, § 103. Although the draft prohibited “ domestic concerns, other than 5

an iss uer ” from offering, paying, promising to pay, or “ authoriz [ ing ] the 6

payment of ” bribes, see S. 305 as Introduced

, §104(a), and the draft included 7

among “ domestic concerns ” both “ an individual who is a citizen or national of 8

the United States, ” as well as most American companies, see S. 305 as Introduced

, 9

§104(c)(1), th e provision did not clarify that an individual employee of a non

10

issuer company would be liable fo r the company ’ s payment of bribes. The result 11

was draft legislation that clearly did not create direct individual liability for 12

employees of publicly

- traded companies, and only arguably created it for 13

employees of other companies. As explained below, the Senate ’ s intention in this 14

draft was to create individual liability using the conspiracy and complicity 15

statutes rather than by enumerating particular individuals who could be liable 16

within the statute ’ s text. 1746 On April 6, 1977, l e ss than a month after Secretary Blumenthal ’ s testimony 1

before a Senate committee

, his concerns regarding individual liability under the 2

nascent FCPA were specifically addressed in a markup session held by the same 3

committee

. During the session , the Committ ee on Banking, Housing and Urban 4

Affairs discussed the version of S. 305 that had been introduced to the Senate

. See 5

Markup Session on S. 305, Corporate Bribery

, S. Comm. o n Banking, Hous. and 6

Urban Affairs, 95th Cong. 1

- 2 (1977)

. The Committee adopted two amendment s 7

that significantly clarified the classes of persons liable under the statute, and did 8

so by reducing the bill ’ s reliance on conspiracy and complicity theories: 9

Amendment number 3 , on page 4, line 5 after the word “ title ” insert 10

t he words “ or a ny officer, director, employee or stockholder thereof 11

acting on behalf of such issuer. ” 12

On pa g e 6 , line 1 after “ 1934 ” insert the words: “ o r any officer, 13

d irector, employee or stockholder thereof acting on behalf of such 14

dom e stic concern. ” 15

Id. at 12. Thes e amendments clarified that particular individuals would be liable 16

for certain violations of the statute. These amendments were explained in the 17

markup hearing as a change to the Senate ’ s earlier plan to cover individuals 18

u sing theories of complicity and conspiracy instead of defining specifically the 19

persons who could be liable under the statute : 2047 [ T ] his amendment also reflec ts the Administration ’ s positi on in 1

r e c o mmending tha t individuals be covered. Indeed, I believe that 2

the committee last year intended to cover individuals ; however, it 3

wasn ’ t specifically state d . They were intended to be covered as 4

aider s , abettors and con s pirators a nd so on and so forth, and this 5

makes cle a r that they are covere d directly a nd a lso it makes it clear 6

th a t th e y are covered in t heir cap a c it y in actin g on behalf of the 7

company. 8

Id. 9

Th e markup session provides powerful evidence of two points relevant to 10

this case. First, before the Carter Administration ’ s concerns and the markup 11

hearing detailed above, the Senate had planned to adopt a bill that largely 12

omitted references to individual liability

, and that instead relied on theories of 13

conspiracy and complicity to tie individual action to corporate misdeeds. In 14

response to administration concerns

— particularly concerns regarding the clarity 15

of liability and its application to foreign persons

— the Senate rejected its prior 16

approach. Instead, it opted for a version of the bill that was not reliant on 17

conspiracy or complicity theories

. Rather, it defined, with great precision, who 18

would be liab le. 19

ii. The House Bill and Final Legislation 2048 In the House , Representative Bob Eckhardt initially proposed a bill , the 1

Unlawful Corporate Payments Act of 1977, with broader coverage than the 2

Senate ’ s initial legislation. See H.R. 3815, 95th Cong . ( as i ntroduced Feb

. 22, 1977 )

. 3

The bill created liability not only for officers, directors, and employees of issuers 4

and domestic concerns, id. at §§ 2(a), 3(c)(1), but also for “ agents ” who 5

“ knowingly and willfully carried out ” bribes, i d. at §§ 2(a )

, 3(c)(2)

. The sections 6

covering individuals

— including subsection (3) (c)(2), which covered “ agents ” 7

who “ carried out ” bribes

— appeared to apply regardl ess of nationality or 8

location. 9

Several leading authorities, including Harvey L. Pitt, General Counsel of 10

the SEC, suggested to Representative Eckhardt and other Congressmen on the 11

Committee on Interstate and Foreign Commerce that these provisions went too 12

far. In a hearing discussing th e bill, Mr. Pitt stated as follows: 13

At a minimum, I think the language of subsection (c )( 2), applying to 14

any agent, might create some jurisdictional problems if the agent is 15

wholly situated overseas and has not been in this country . While I 16

think there are jurisdictional ties that could be asserted, the 17

problems you express in this case might be even worse in terms of 18

prosecution. But, I think you could so something along the lines you 19

are suggesting either by amending this subsection or by report 20

language that would clarify burdens of proof, obligations, and the 2149 involvement of agents, to provide a fair opportunity for an agent to 1

present his defense. That does seem to be a very serious concern. 2

Unlawful Corporate Payments Act of 1977: Hearings Before the Su bcomm. on Consumer 3

Prot. and Fin. of the Comm. on Interstate and Foreign Commerce , 95th Cong. 232 4

(1977) (statement of Harvey L. Pitt, General Counsel , Securities and Exchange 5

Commission ). Following these hearings, the Committee on Interstate and Foreign 6

Commerce reported an amended bill to the House. The revised version allowed 7

liability for agents and employees of issuers and domestic concerns only if the 8

company for which they worked was also foun d to be liable

— a change that 9

essentially increased the U.S. nexus required for an offense to be covered. 7 See H. 10

Rep. No. 95

- 831, at 13 (1977) (Conf. Rep.) (hereinafter “1977 Conference Report”). 11

7 It is noteworthy that the Committee Report accompanying the amended House

bill in September of 1977 discussed the legislation’s purposes, and the need for

the legislation, significantly more broadly than did the Senate’s comparable

report:

The payment of bribes to influence the acts or decisions of foreign

officials, foreign political parties or candidates for foreign political

office is unethical. It is counter to the moral expectations and values

of the American public. But not only is it unet hical, it is bad business

as well. It erodes public confidence in the integrity of the free market

system. It short

- circuits the marketplace by directing business to

those companies too inefficient to compete in terms of price, quality

or service, or too l azy to engage in honest salesmanship, or too

intent upon unloading marginal products. . . . Bribery of foreign50 The final version of the FCPA , agreed to in conference, de monstrated a 1

compromise between the House and Senate versions. Like the Senate ’ s revised 2

bill

— and the House ’ s original bill

— it named particular categories of individuals 3

who would be liable under the FCPA rather than relying on the use of conspiracy 4

and complicity principles to create such liability. See Foreign Corrupt Practices 5

Act, Pub. L. No. 95

- 213, § 103(a ), 91 Stat. 1494 , 1495 (creating liability for bribery 6

committed by an “ issuer ” and “ a ny officer, director, employee, or agent of such 7

officials by some American companies casts a shadow on all U.S.

companies. The exposure of such activity can damage a company’s

image, lead to co stly lawsuits, cause the cancellation of contracts,

and result in the appropriation of valuable assets overseas.

Corporate bribery is also unnecessary. . . . Corporate bribery also

creates severe foreign policy problems for the United States. The

revelatio n of improper payments invariably tends to embarrass

friendly governments, lower the esteem for the United States among

the citizens of foreign nations, and lend credence to the suspicions

sown by foreign opponents of the United States that American

enterp rises exert a corrupting influence on the political processes of

their nations. . . . Finally, a strong antibribery statute would actually

help U.S. corporations resist corrupt demands.

H.R. Rep. 95

- 640, at 4

- 5 (1977). This strong language underlines what is

otherwise clear throughout the legislative history: that the House was concerned

chiefly with questions of morality and public propriety

— and public

perception

— whereas the Senate appeared more concerned with the SEC’s ability

to obtain accurate disclosures and to police corporate filings.51 issuer or any stockholder thereof acting on behalf of such issuer ” ); id. at § 104(a)

, 1

91 Stat. at 1496 (creating liabilit y for bribery by a “ domestic concern, other than 2

an issuer

, ” and for “ any officer, director, employee, or agent of such domestic 3

concern or any stockholder thereof acting on behalf of such domestic concern ” ). 4

It did allow liability for agents, but restrict ed the liability to an agent who was “ a 5

United States citizen, national, or resident or is otherwise subject to the 6

jurisdiction of the United States

, ” 8 and also required a finding that the employer 7

had been liable. Id. at § 103( a ) , 91 Stat. at 1496 ; id. at § 104(b)(3)(a) , 91 Stat. at 1497

. 8

The bill also rejected liability for foreign affiliates of American companies. 9

The Conference Report emphasized that the statute drew deliberate lines 10

regarding the liability of foreign persons, both corporate and nat ural: 11

[T] he conferees recognized the inherent jurisdictional, enforcement, 12

and diplomatic difficulties raised by the inclusion of foreign 13

subsidiaries of U.S. companies in the direct prohibitions of the bill. 14

However, the conferees intend to make clear tha t any issuer or 15

domestic concern which engages in bribery of foreign officials 16

indirectly through any other person or entity would itself be liable 17

under the bill. The conferees recognized that such jurisdictional 18

8 In United States v. Bodmer , 342 F. Supp. 2d 176, 188 (S.D.N.Y. 2004), the district

court ruled that the phrase “otherwise subject to the jurisdiction of the United

States” did not expand the persons subject to liability under this section, because

the phrase is superfluous . In any case, the government does not here suggest that

it creates liability over foreign nationals.52 enforcement, and diplomatic difficulties m ay not be present in the 1

case of individuals who are U.S. citizens, nationals, or residents. 2

Therefore, individuals other than those specifically covered by the 3

bill ( e.g. , officers, directors, employees, agents, or stockholders acting 4

on behalf of an issu er or domestic concern) will be liable when they 5

act in relation to the affairs of any foreign subsidiary of an issuer or 6

domestic concern if they are citizens, nationals, or residents of the 7

United States. In addition, the conferees determined that foreig n 8

nationals or residents otherwise under the jurisdiction of the United 9

States would be covered by the bill in circumstances where an issuer 10

or domestic concern engaged in conduct proscribed by the bill. 11

1977 Conference Report at 1 4

. This discussion, much like the discussion in the 12

earlier hearings on the Senate ’ s 1976 legislation, largely resolves the problem of 13

liability against foreign persons by noting that an American company will be 14

liable if it acts through unreachable foreign affiliates. See id. (no ting that “ any 15

issuer or domestic concern which engages in bribery of foreign officials indirectly 16

through any other person or entity would itself be liable ” ). Its mention of 17

situations where “ foreign nationals or residents otherwise under the jurisdiction 18

of the United States ” would be liable because “ an issuer or domestic concern 19

engaged in conduct proscribed by the bill ” clearly refers to the statute ’ s liability 20

for agents, which permits jurisdiction over foreign nationals. I d. T he Conference 21

Report made no mention of conspiracy or aiding

- and

- abetting theories of 22

liability. 2353 b. The 199 8 Revisions 9 1

In 1998 , Congress amended the FCPA

. The Committee Report from the 2

Senate Committee on Banking, Housing, and Urban Affairs noted that “ [s] ince 3

the passage of the FCPA, American businesses ha ve operated at a disadvantage 4

relative to foreign competitors who ha ve continued to pay bribes without fear of 5

penalty, ” because their countries ’ laws did not include comparable prohibitions 6

on bribery. S. R ep

. No. 105

- 277, at 2 (1998) (hereinafter “1998 Senate Report”) . In 7

response to this problem, “ [i] n 1988, Congress directed the Executive Branch 8

actively to seek to level the playing field by encouraging

. . . trading partners to 9

enact legislation similar to the FCPA

. ” Id. “ Th ese efforts eventually culminated in 10

the Organization for Economic Cooperation and Development Convention on 11

Combating Bribery of Foreign Public Officials in International Business 12

Transactions (the ‘ OECD Convention ’ ), ” which asked signatory nations to ena ct 13

anti

- bribery laws containing certain minimum requirements. Id. 14

i. Congress ’ s View of the Amendments 15

9 Neither party relies significantly on changes to th e statute that occurred in 1988,

so the Court need not analyze that set of amendments.54 As the Committee Report explained, t he 1998 statute aimed to “ amend [] 1

the FCPA to conform it to the requirements of and to implement the OECD 2

Convention

. ” Id. The amendments served five major purposes

, although only 3

three are pertinent here: 4

[First] , the OECD Convention calls on parties to cover “ any person ” ; 5

the [1977] FCPA cover [ed] only issuers with securities registered 6

under the 1934 Securities Exchange Act and “ domestic concerns. ” 7

The Act, therefore, expands the FCPA ’ s coverage to include all 8

foreign persons who commit an act in furtherance of a foreign bribe 9

while in the United States.

. . . 10

[Additionally] , the OECD Co nvention calls on parties to assert 11

nationality jurisdiction when consistent with national legal and 12

constitutional principles. Accordingly, the Act amends the FCPA to 13

provide for jurisdiction over the acts of U.S. businesses and 14

nationals in furtherance o f unlawful payments that take place 15

wholly outside the United States. This exercise of jurisdiction over 16

U.S. businesses and nationals for unlawful conduct abroad is 17

consistent with U.S. legal and constitutional principles

. . . . 18

[F] inally, the Act amends the FCPA to eliminate the current 19

disparity in penalties applicable to U.S. nationals and foreign 20

nationals employed by or acting as agents of U.S. companies. In the 21

[1977] statute, foreign nationals employed by or acting as agents of 22

U.S. companies [were ] subject only to civil penalties. The Act 23

eliminates this restriction and subjects all employees or agents of 24

U.S. businesses to both civil and criminal penalties. 25

Id. at 2

- 3. The relevant changes to the statute, in short, were liability for foreign 26

perso ns who committed acts within the United States, assertion of jurisdiction 2755 over American businesses and nationals bribing persons wholly outside the 1

United States, and creat ion of criminal, rather than just civil, penalties for foreign 2

nationals who are employees or agents of American companies. Clearly, none of 3

these goals have an impact on the question at issue in this case

— whether a 4

nonresident foreign national, acting entirely o utside the United States, and who 5

is not an employee or agent of an American company, may be liable based on a 6

conspiracy or complicity theory. 7

Moreover, the Committee Report took great pains to emphasize that the 8

foreign nationals covered under the statu te fit within three categories: (1) t hose 9

who acted on American soil, (2) those who were officers, directors, employees , or 10

shareholders of U.S. companies, and (3) those wh o were agents of U.S. 11

companies. The following examples illustrate the Report ’ s care in making the 12

matter clear: 13

Section 2(d) implements the OECD Convention by amending § 32(c) 14

of the Securities Exchange Act of 1934 to eliminate the current 15

disparity in treatment between U.S. nationals that are employees or 16

agents of issuers and foreign n ationals that are employees or agents 17

of issuers. Presently, foreign nationals who are employees or agents (as 18

opposed to officers or directors) are subject only to civil sanctions.

. . . 19

[I] t is expected that the established principles of liability, inclu ding 20

principles of vicarious liability, that apply under the current version 2156 of the FCPA shall apply to the liability of U.S. businesses for acts 1

taken on their behalf by their officers, directors, employees, agents, or 2

stockholders outside the United States, regardless of the nationality of the 3

officer, director, employee, agent, or stockholder

. 4

The new offense

. . . provid [es] for criminal jurisdiction in this 5

country over bribery by foreign nationals of foreign officials when the 6

foreign national takes some act in furtherance of the bribery within the 7

territory of the United States

. 8

Id. at 4

- 5 (emphas e s added). Each mention of foreign nationals is carefully 9

followed by clarifications

— often highly repetitive ones

— noting that foreign 10

nationals are liable only because they fall within one of th e three categories. 11

There is no mention, in any of these seemingly exhaus tive descriptions of how 12

foreign nationals are covered under the statute, of liability based on conspiring 13

or aiding and abetting an offense even though the foreign national is not an 14

agent, employee, officer, director, or shareholder of the American compa ny, and 15

even though the foreign national is operating entirely outside the territory of the 16

United States. 17

ii. Language of the OECD Convention 18

The government ’ s argument

— that Congress must have intended to cover 19

foreign nationals acting abroad who are not empl oyees or agents of an American 20

company

— focuses heavily on the OECD Convention with which Congress 2157 intended to make American law comply

. The government first contends that the 1

OECD Convention shows that the United States agreed to “ take such measures 2

as may be necessary to establish that it is a criminal offence under its law for any 3

person intentionally to ” engage in bribery of foreign officials. Convention on 4

Combating Briber y and Foreign Public Officials in International Business 5

Transactions art. 1.1, Dec. 17 , 1997 , S. Treaty Doc . No. 105

- 43, 37 I.L.M. 1 (1998) 6

(hereinafter “ OECD Convention ” ) (emphasis added). The government reads the 7

words “ any person ” to apply expansively, including to nonresident foreign 8

nationals who do not have direct connections t o American businesses. 9

The government ’ s argument falters for two reasons. First, the requirement 10

that intentional bribery by “ any person ” is illegal is a highly general one; it does 11

not require approval of the precise type of complicity or conspiracy theory 12

involved in this case. Second, Congress carefully considered the “ any person ” 13

language, and interpreted it in a way that does not involve the government ’ s 14

theory of liability here . The Senate ’ s Commit tee Report first noted that th e “ any 15

person ” text was effectuated by expanding the FCPA to include conduct by 16

foreign nationals within the United States: 1758 [T] he OECD Convention calls on parties to cover “ any person ” ; the 1

current FCPA covers only issuers wit h securities registered under 2

the 1934 Securities Exchange Act and “ domestic concerns. ” The Act, 3

therefore, expands the FCPA ’ s coverage to include all foreign 4

persons who commit an act in furtherance of a foreign bribe while in 5

the United States. 6

1998 Sena te Report

, at 2

- 3 . Congress also associated the “ any person ” language 7

with applying criminal, rather than civil, penalties to foreign nationals who 8

violated the statute as employees or agents of issuers or domestic concerns. Id. at 9

4, 5. In short, Congress focused specifically on the text the government discusses, 10

and employed it in a reasonable way that is not connected to complicity or 11

conspiracy liability for foreign nationals. 12

The government next notes that the OECD Convention specifically 13

mentions ancillary theories of liability such as conspiracy and complicity: 14

Each Party shall take any measures necessary to establish that 15

complicity in, including incitement, aiding and abetting, or 16

authorisation of an act of bribery of a for eign public official shall be 17

a criminal offence. Attempt and conspiracy to bribe a foreign public 18

official shall be criminal offences to the same extent as attempt and 19

conspiracy to bribe a public official of that Party. 20

OECD Convention art. 1.2. The gov ernment contends that the text of this 21

provision, requiring that conspiracy to bribe a foreign official “ shall be [a] 22

criminal offence [] to the same extent as

. . . conspiracy to bribe a public official 2359 of ” the United States, demands that a conspiring foreign national operating 1

abroad be covered by the FCPA. The government ’ s argument is that federal 2

bribery statutes would indeed cover situations where over seas defendants 3

conspire to bribe an American officia l. 4

The difficulty with the government ’ s position, however, is that this 5

provision covers the content of substantive law

— the particular acts prohibited by 6

it

— n ot the law ’ s jurisdictional aspects. A separate part of the Convention 7

addresses j urisdictional q uestions. See OECD Convention art. 4. Moreover, 8

adopting the government ’ s view that the jurisdictional reach of the FCPA must 9

be coterminous with that of bribery of American officials would transform the 10

FCPA into a law that purports to rule the world. The defendant notes, for 11

example, that bribery statutes covering American officials prohibit not only 12

crimes with foreign national conspirators acting overseas, therefore, under the 13

government’s theory, these statutes likely cover situations in which the e ntire 14

offense occurred overseas

— that is, where there i s no U.S. nexus at all except that 15

the official to be bribed i s stateside. The government does not dispute this point. 16

Consequently, if read as the government proposes, the above

- quoted provision 17

of the Convention would cover conspiracies to bribe foreign officials consisting 1860 entirely of actions taken abroad. That is obviously not consistent with the 1

legislation Congress wrote, and it cannot be what the OECD Convention 2

requires

. 3

The government also poin ts to provisions about the territorial reach of the 4

OECD Convention. In particular, the government emphasizes the following 5

passage: 6

Each Party shall take such measures as may be necessary to establish 7

its jurisdiction over the bribery of a foreign public official when the 8

offence is committed in whole or in part in its territory. 9

OECD Convention art. 4.1. The government essentially believes this passage to 10

establish that, where “ any part ” of the offense occurs within the United States, 11

the country is required to exercise jurisdiction over someone whose conduct is 12

related to the offense, no matter how attenuated the person ’ s connection to the 13

acts taken on American soil. 14

The government ’ s reading is undercut by the commentaries to the OECD 15

Convention, and by Congress ’ s careful consideration of th e provision ’ s meaning

. 16

The accompanying commentary to the Convention states , regarding Article 4.1, 17

that “ [t] he territorial basis for jurisdiction should be interpreted broadly so that 18

an extensive physical connection to the bribery act is not required. ” OECD 1961 Convention cmt. 4.1. This language suggests that the Convention contemplated 1

jurisdiction over persons with some “ physical connection to the br ibery act, ” even 2

if not an “ extensive ” one, rather than persons with no physical connection to the 3

actions at all. Congress plainly shared this view of the provision. As the 4

Committee Report noted: 5

The OECD Convention requires each Party to “ take such measures 6

as may be necessary to establish its jurisdiction over the bribery of a 7

foreign public official when the offense is committed in whole or in 8

part in its territory. ” OECD Convention, Art. 4, ¶ 1. The new offense 9

complies with this section by provid ing for criminal jurisdiction in 10

this country over bribery by foreign nationals of foreign officials 11

when the foreign national takes some act in furtherance of the 12

bribery within the territory of the United States. 13

1998 Senate Report, at 5 . Congress ’ s read ing , and the view described in the 14

commentaries both comport with the Convention provision ’ s text. A requirement 15

that a nation “ establish its jurisdiction over the bribery of a foreign public 16

official ” does not say that it must create jurisdiction over per sons in foreign lands 17

with only distant connections to the offense. It is fairly read to mean that a nation 18

that has agreed to the Convention must enact a law covering persons who 19

commit acts within the nation ’ s own borders. 20

c. The Legislative History ’ s Demonstration of an Affirmative 21

Legislative Policy 2262 The strands of the legislative history demonstrate, in several ways, the 1

affirmative policy described above: a desire to leave foreign nationals outside the 2

FCPA when they do not act as agents, employees, directors, officers, or 3

shareholders of an American issuer or domestic concern, and when they operate 4

outside United States territory. 5

First, it is clear that the FCPA ’ s enumeration of the particular individuals 6

who may be held liable under the Act demon strated a conscious choice by 7

Congress to avoid creating individual liability through use of the conspiracy and 8

complicity statutes. As discussed above, the statute ’ s initial approach was to 9

place liability for bribery largely upon companies, and then to allow prosecution 10

of individuals for conspiring with companies or aiding and abetting their 11

violations of the law. But the Carter Administration objected to that approa ch, 12

voicing concerns for due process protections and clarity of rules for foreign 13

persons. The statute was amended; the amended version narrowly tailored the 14

liability for foreign individuals, and did not contemplate a reversal of that 15

narrow tailoring by means of conspiracy and complicity theories. T hese changes 16

were principally discussed in the Senate . But the House bill, and the final 17

legislation , were structured similarly to the Senate ’ s revised bill. At the same 1863 time that the Senate made these changes, the House was revising its own 1

legislation to cut back on liability placed upon foreign agents, again because of 2

specific concerns expressed by executive

- branch officials regarding overreach. 3

The 1998 amendments surely ex tended the statute ’ s jurisdictio nal reach. 4

But in doing so, Congress delineat ed as specifically as possible the persons who 5

would be liable, and under what circumstances liability would lie. None of the 6

changes included liability for the class of individuals involved in this case. And 7

de spite the government ’ s urging to the contrary, nothing in the OECD 8

Convention required Congress to create such liability. 9

Congress also repeatedly emphasized that out

- of

- reach foreign entities 10

should not create concern because American companies would be liable for 11

violating the Act even if they did so indirectly through such persons. See 1998 12

Senate Report at 5 ( “ Although this section imposes liability only on U.S. persons, 13

it is expected that the established p rinciples of liability, including principles of 14

vicarious liability, that apply under the current version of the FCPA shall apply 15

to the liability of U.S. businesses for acts taken on their behalf by their officers, 16

directors, employees, agents or stockhol ders outside the United States, regardless 17

of the [ir] nationality

. . . . ” ) ; 1977 Conference Report at 14 (noting, despite 1864 “ inherent jurisdictional, enforcement, and diplomatic difficulties raised by the 1

inclusion of foreign subsidiaries ,” “ the conferees i ntend to make clear that any 2

issuer or domestic concern which engages in bribery of foreign officials indirectly 3

through any other person or entity would i tself be liable under the bill”)

. 4

Finally, limitations on liability for foreign nationals based on conspiracy 5

and complicity theories were sensible given congressional concerns and 6

aspirations in enacting the FCPA. In passing the statute, Congress was largely 7

concerned with ensuring the SEC ’ s ability to supervise and police companies

, S. 8

R ep

. No. 95

- 114, at 2 (1977)

, reprinted in 1977 U.S.C.C.A.N. 4098, 4099

, as well as 9

the negative perception that bribery could create for American companies, its 10

effect on the marketplace, and the foreign policy implications of the conduct

, s ee 11

H.R. Rep. No. 95

- 640

, at 4

- 6 (1977) . But Congress also desired that the statute not 12

overreach in its prohibitions against foreign persons. Protection of foreign 13

nationals who may not be learned in American law is consistent with the central 14

motivations for passing the l egislation, particularly foreign policy and the public 15

perception of the United States. And the desire to protect such persons is 16

pressing when considering the conspiracy and complicity statutes: these 1765 provisions are among the broadest and most shapeless o f American law, and 1

may ensnare persons with only a tenuous connection to a bribery scheme. 2

In short, the legislative history of the FCPA further demonstrates 3

Congress ’ s affirmative decision to exclude from liability the class of persons 4

considered in thi s case and we thus hold that the government may not override 5

that policy using the conspiracy and complicity rules. 6

D. Presumption Against Extraterritorial Application 7

Even if we were not persuaded that Congress had demonstrated an 8

affirmative legislative policy in the FCPA to limit criminal liability to the 9

enumerated categories of defendants , we would still rule for Hoskins because the 10

government has not established a ““ clearly expressed congressional i ntent to ” 11

allow conspiracy and complicity liability to broaden the extraterritorial reach of 12

the statute. RJR Nabisco , 136 S. Ct. at 2100. 13

The Supreme Court ’ s recent opinion in RJR Nabisco explained a “ two

- step 14

framework for analyzing extraterritoriality issues ” : 15

At the first step, we ask whether the presumption against 16

extraterritoriality has been rebutted

— that is, whether the statute 17

gives a clear, affirmative indication that it applies extraterritorially. . 18

. . If the statute is not extraterritorial, then at the second step we 19

determine whether the case involves a domestic application of the 2066 statute, and we do this by looking to the statute ’ s “ focus. ” If the 1

conduct relevant to the statute ’ s focus occurred in the United States, 2

then the case involves a permissible domestic application even if 3

other conduct occurred abroad; but if the conduct relevant to the 4

focus occurred in a foreign country, then the case involves an 5

impermissible extraterritorial application regardless of any other 6

conduct that occur red in U.S. territory. 7

What if we find at step one that a statute clearly does have 8

extraterritorial effect?

. . . . [W] e addressed this issue in Morrison [ v. 9

National Australia Bank Ltd., 561 U.S. 247 (2010) ] explaining that it 10

was necessary to consider § 10(b) ’ s “ focus ” only because we found 11

that the statute does not apply extraterritorially: “ If § 10(b) did apply 12

abroad, we would not need to determine which transnational frauds 13

it applied to; it would apply to all of them (barring some other 14

limitation). ” The scope of an extraterritorial statute thus turns on the 15

limits Congress has (or has not) imposed on the statute ’ s foreign 16

application, and not on the statute ’ s “ focus. ” 17

Id. at 2101 (internal citation omitted)

. 18

In RJR Nabisco , the Court evaluate d the extraterritorial application of the 19

RICO Act. As the Court noted, the RICO Act does not describe distinctive 20

conduct not punished by other laws. Id. at 2096

- 97. A given violation of the RICO 21

Act is based on a pattern of violations of other criminal st atutes

— so

- called 22

“ predicate offense[s] ”

— named within the RICO Act. Id. When a defendant 23

commits several “ predicate offenses ” within a given period of time, the 24

defendant may be sued for a separate racketeering offense under RICO. 2567 Applying the test quoted above, the Court determined that the RICO Act 1

“ applie [d] to foreign racketeering activity

— but only to the extent that the 2

predicates alleged in a particular case themselves apply extraterritorially. ” Id. at 3

2102. The Court emphasized that “ foreign conduct must violate a predicate 4

statute that manifests an unmistakable congressional intent to apply 5

extraterritorially. ” Id (internal quotation mar k s omitted)

. That is because, “ ‘ when 6

a statute provides for some extraterritorial application, the presumption agai nst 7

extraterritoriality operates to limit that provision to its terms. ’ ” Id. (quoting 8

Morrison , 561 U.S. at 265 )

. 9

E ven after determining that certain substantive provisions of the RICO Act 10

applied extraterritorially, the Court ruled that the statute ’ s provision allowing a 11

private right of action

— the basis of the legal claims in RJR Nabisco

— did not 12

apply extraterritoriall y. Id. at 211 0 . The Court ’ s conclusion was based on its 13

reading of the statute, as well as its observation that “ providing a private ci vil 14

remedy for foreign conduct creates a potential for international friction beyond 15

that presented by merely applying U.S. substantive law to that foreign conduct. ” 16

Id. at 2106. 1768 In brief, the Supreme Court ’ s teachings in RJR Nabisco were that (1) when a 1

statute includes some extraterritorial application, that application is limited by 2

the statute ’ s terms, and that (2) remedial provisions must be analyzed 3

independently to discern whether they permit extraterritorial application. 10 4

Thes e principles , though articulated in the RICO context, are consistent with 5

prior rulings by a number of courts regarding extraterritorial liability based on 6

the conspiracy and complicity statutes. Those statutes, like RICO, do not create 7

new substantive off enses, but merely allow liability for other legal violations. 8

Accordingly, courts have repeatedly ruled that “ [g] enerally, the extraterritorial 9

reach of an ancillary offense like aiding and abetting or conspiracy is 10

coterminous with that of the underlying criminal statute. ” United States v. Ali , 718 11

F.3d 929, 939 (D.C. Cir. 2013) ; see also United States v. Yakou , 428 F.3d 241, 252 12

(D.C. Cir. 2005) ( “ The aiding and abetting statute , however, is not so broad as to 13

10 The government cites European Cmty. v. RJR Nabisco, Inc. , 764 F.3d 129, 142 (2d

Cir. 2014), rev’d, 136 S. Ct. 2090 (2016) for the proposition that if all elements of a

statute are satisfied, “that statute is violated even if some further conduct

contributing to the violation occurred outside the United States.” [ Gray 14

- 15.]

But the government neglects to mention that the text directly preceding this

statement instructs that the proposition only applies to a statute “that does not

apply extraterritorially.” Id. Clearly, the FCPA applies extraterritorially, so the

proposition the government cites is inapplicable here.69 expand the extraterritorial reach of the unde rlying statute. ” ); United States v. Hill

, 1

279 F.3d 731, 739 (9th Cir. 2002) ( “ [A] iding and abetting, and conspiracy

. . . have 2

been deemed to confer extraterritorial jurisdiction to the same extent as the 3

offenses that underlie them. ” ); see also United States v. Bowman , 260 U.S. 94 (1922) 4

(considering the extraterritorial application of the substantive offense and of a 5

conspiracy charge without distinction). 6

These rules demonstrate that the conspiracy and complicity statutes may 7

not be used to bring the charges involved in this appeal

. Because some 8

provisions of the FCPA have extraterritorial application, “ ‘ the presumption 9

against extraterritoriality operates to limit th [ose] provision [s] to [their] terms, ’ ” 10

RJR Nabisco , 136 S. Ct. at 2102 (quoting Morrison , 561 U.S. at 265)

. And, a s 11

detailed at length above, t he FCPA does not impose liability on a foreign national 12

who is not an agent, employee, officer, director, or shareholder of an American 13

issuer or domestic concern

— unless th at person commits a crime within the 14

territory of the United States

, see 15 U.S.C. § 78dd

- 3 (providing liability for 15

persons “ other than an issuer

. . . or a domestic concern

. . . or

. . . any officer, 16

director, employee, or agent of such person or any stockholder thereof ” o nly if 17

the person’s conduct is undertaken “ while in the territory of the United States ”)

. 1870 In other words, the territorial limitations of the FCPA preclude liability for such a 1

person. The government may not expand the extraterritorial reach of the FCPA 2

by recourse to the conspiracy and complicity statutes

. 3

The government cites numerous cases that it believes to stand for the 4

proposition that the conspiracy and complicity statutes can cover extraterritorial 5

conduct even when the underlying statute does not

. See , e.g.

, Ford v. United States

, 6

273 U.S. 593 (1927); United States v. Inco Bank & Tr. Corp. , 845 F.2d 919 (11th Cir. 7

1988); United States v. Winter, 509 F.2d 975 (5th Cir. 1975) ; United States v. Lawson

, 8

507 F.2d 433 (7th Cir. 1974) ; Rivard v. United S tates , 375 F.2d 882 (5th Cir. 1967). 9

But these cases all considered statutes p rohibiting illegal importation of various 10

items

— statutes that certainly contemplated the punishment of extraterritorial 11

action of precisely the kind that the defendants in the ca ses were convicted. See 12

Ford , 273 U.S. at 600

- 01 (conspiracy to import liquor into the United States); Inco 13

Bank , 845 F.2d at 919

- 20 (conspiracy to defraud the United States by laundering 14

money); Winter, 509 F.2d at 97 7 ( importation of marijuana); Lawson , 507 F.2d at 15

435 (importation of cocaine); Rivard , 375 F.2d at 887 (importation of heroin)

. The 16

government cites no case in which a statute dr ew specific lines as to its 17

extraterritorial application, and those lines were exceeded using the conspiracy 1871 or c omplicity theories. The argument thus poses no difficulty for our 1

understanding of RJR Nabisco and related principles of the extraterritorial 2

application of conspiracy and complicity rules. 3

Consequently, the presumption against extraterritoriality bars the 4

government from using the conspiracy and complicity statutes to charge Hoskins 5

with any offense that is not punishable under the FCPA itself because of the 6

statute ’ s territorial limitations. That includes both charges that are the subject of 7

this motio n

— conspiracy to violate Section s 78dd

- 2 and 78dd

- 3 of the FCPA , and 8

liability as an accomplice for doing so

— because the FCPA clearly dictates that 9

foreign nationals may only violate the statute outside the United States if they 10

are agents, employees, offic ers, directors, or shareholders of an American issuer 11

or domestic concern. To hold Hoskins liable, the government must demonstrate 12

that he falls within one of those categories or acted illegally on American soil

. 13

III. The Second Object of the Conspiracy 14

Notwithstanding this Court’s conclusion that Hoskins cannot be held 15

liable under the FCPA if he is not in the categories of persons directly covered by 16

the statute, the government argues that it was error for the district court to 17

dismiss the second object of the conspiracy. We agree. 1872 The second object alleges that Hoskins willfully conspired with various co

1

defendants to, “while in the territory of the United States,” commit acts in 2

furtherance of bribing fo reign officials in violation of Section 78dd

- 3. Indictment 3

¶ 26(b). The district court held that, because “it is undisputed that Mr. Hoskins 4

never entered the territory of the United Stat e s and thus could not be prosecuted 5

under this section,” Gebardi barred the government from charging Hoskins with 6

the second object of the conspiracy. Hoskins , 123 F. Supp. 3d at 327 n. 14. This 7

Court agrees that Hoskins cannot be directly liable under Section 78dd

- 3. 8

However, the government “maintains that it still intends to prove that [Hoskins] 9

acted as an agent of a domestic concern liable as a principal for the substantive 10

FCPA counts charged in the indictment” in violation of Section 78dd

- 2. Id. at 318

- 11

19 n.1. Provided that the government makes this showing, there is no affirmative 12

legislative policy to leave his conduct unpunished, nor is there an extraterritorial 13

application of the FCPA. Accordingly, the government should be allowed to 14

argue that, as an agent, Hoskins committed the first object by conspiring with 15

employees and other agents of Alstom U.S. and committed the second object by 16

conspiring with foreign nationals who conducted relevant acts while in the 17

United States. 1873 Accordingly, the district court erred in concluding that Hoskins was 1

incapable of conspiring to violate Section 78dd

- 3 because he was never in the 2

United States and we reverse this portion of the holding with instructions for the 3

district court to reinstate the second object of the conspiracy. 4

CONCLU SION 5

We have considered the government ’ s remaining arguments and find 6

t hem to be without merit. Accordingly, the district court ’ s orders are AFFIRMED 7

in part and REVERSED in part

. 8G ERARD E. L YNCH

, Circuit Judge, concurring : 1

I join in Judge P OOLER ’s thorough opinion for the Court, and write only to 2

state why I regard this as a close and difficult case. 3

I 4

The operative indictment in this case charges, among other things, that 5

Lawrence Hoskins, a senior vice president of a foreign corporation based abroad, 6

(1) conspired with others, among them named employees of a Connecticut power 7

company that is a subsidiary of the foreign corporation for which Hoskins 8

worked, to commit offenses against the United States, including to violate the 9

Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. § 78dd

‐ 2, by bribing 10

Indonesian public officials, and (2) committed substantive violations of that 11

statute in that he aided and abetted those American individuals who engaged in 12

the charged bribery. 13

For purposes of this appeal, we assume that Hoskins was neither an 14

employee nor an agent of a domestic concern. 1 He therefore does not fall within 15

the terms of the statute, any more than the get

‐ away driver for a bank robbery 16

1 See Court Op. 4 n.1. The district court dismissed the indictment only insofar as

1

it relies on the conspiracy and aiding and abetting theories, and left the charges 2

against Hoskins intact insofar as he is charged as an “agent” of an American 3

entity. 4team has personally “by force and violence

. . . take[n]

. . . from the person or 1

presence of another

. . . any property

. . . belonging to

. . . any bank.” 18 U.S.C. 2

§ 2113(a). He did not, by his own actions, commit the acts prohibited by the 3

FCPA, nor is he within the class of individuals who could commit the prohibited 4

acts. 5

The problem for Hoskins, however, as for the get

‐ away driver, is that 18 6

U.S.C. § 2 punishes “as a principal” anyone who, although he or she does not 7

personally commit the acts constituting the offense, “aids, abets, counsels, 8

commands, induces or procures” the commission of those acts by another; in 9

addition, 18 U.S.C. § 371 punishes anyone who “conspire[s]” with another to 10

commit the offense. The indictment in this case expressly charges that someone 11

(specifically the alleged co

‐ conspirator Pomponi, who was an employee or agent 12

of a domestic concern) did engage in substantive violations of the FCPA, and that 13

Hoskins conspired with, and aided and directed, that person in the commission 14

of the offense. 15

As the opinion for the Court expressly recognizes, were we to rely solely 16

on “the plain language of the general statutes regarding conspiracy and 17

accessorial liability

— which nothing in the text of the FCPA purports to override 18

2or limit

– if Hoskins did what the indictment charges, he would appear to be 1

guilty of conspiracy to violate the FCPA and (as an accomplice) of substantive 2

violations of that statute,” Court Op. 19

S 20, just as the wheelman for the bank 3

robbery team is guilty of conspiracy and of substantive violations of the bank 4

robbery statute. That is precisely the result that the conspiracy and complicity 5

statutes, and the common

‐ law doctrines that long preceded such statutes and 6

which the statutes codify, are designed to effect. 7

Moreover, as the Court also recognizes, the fact that the FCPA specifies 8

that only particular classes of people can violate the law by bribing foreign 9

officials does not in itself restrict the reach of conspiratorial or aiding and 10

abetting liability to those same classes of people. Many offenses are defined such 11

that they may be committed only by the actions of particular types of people. But 12

as the Court’s opinion ably documents, “the firm baseline rule with respect to 13

both conspiracy and complicity is that where the crime is so defined that only 14

certain categories of persons

. . . may commit the crime through their own acts, 15

persons not within those categories can be guilty of conspiring to commit the 16

crime or of the substantive crime itself as accomplices.” Court Op. 21. That is not 17

only the rule established by federal precedent; as the Court notes, that position is 18

3“universally held” in the states and in other Anglo

‐ American jurisdictions. Id

. 1

n.4, quoting the American Law Institute, Model Penal Code and Commentaries, 2

§ 2.06 at 323 (1985). 2 3

That baseline principle, like most principles, admits of exceptions, some of 4

which have longstanding common

‐ law roots. One such exception, as the Court’s 5

opinion notes, is exemplified by the Supreme Court’s opinion in Gebardi v. United 6

States

, 287 U.S. 112 (1932). Sometimes we can infer from the apparent purpose of 7

the statute that the legislature cannot have intended to extend accessorial liability 8

to a class of persons who might better be thought of as victims of the crime (such 9

as a willing underage participant in a sex act defined as rape because of the 10

underage party’s incapacity to consent, even where the minor intentionally 11

facilitates the act and is old enough to have the capacity to commit a crime), or 12

2 For example, 18 U.S.C. § 656 makes it a crime for an “officer, director, agent or

employee of” certain banking institutions to “embezzle[ ]

. . . or misappl[y]” the

bank’s funds. But it would be quite peculiar if the language of the law defining

the kinds of persons who could be the principals of an embezzlement scheme

precluded from liability, by that very definition, those who aid or induce a bank

officer to engage in acts of embezzlement. Thus, if a bank officer persuades a

friend with computer expertise to write code that could be insinuated into the

bank’s computers to divert funds into the officer’s account, in exchange for a

share of the proceeds of the crime, the computer

‐ savvy friend would of course be

punishable for knowingly joining and assisting the criminal plan.

4where a legislative sentencing scheme distinguishes levels of culpability among 1

various participants, and treating the less culpable party as an accomplice of the 2

more culpable one would undermine that scheme (as in the case of narcotics 3

transactions, where possessors of illegal drugs for their own use are punished 4

less severely than distributors; the purchaser is not treated as the accomplice of 5

the seller even though he or she intentionally facilitates the sale). 3 6

This exception, however, must be construed narrowly. Discerning when 7

the legislature “must have” intended to exempt a particular class of persons from 8

the plain text of its statutes is a tricky business. What, after all, in the language or 9

structure of the statute distinguishes one statute that limits the category of 10

principal offenders from another, such that some few should be singled out as 11

clearly intending to preclude some persons outside that category from liability, 12

and distinguished from the general run of statutes where no such intention can 13

3 The latter aspect of the exception largely accounts for United States v. Amen

, 831

1

F.2d 373 (2d Cir. 1987). The “continuing criminal enterprise” or “kingpin” statute, 2

21 U.S.C. § 848, is essentially a sentence

‐ enhancing statute that identifies some 3

drug dealers as worthy of increased punishment because of the extent and 4

magnitude of their criminal acts. To apply accessorial liability as a way of 5

bumping the kingpin’s henchmen up to the same level of punishment because 6

they help him in his enterprise would disrupt the legislature’s intention to 7

impose graduated punishments according to various conspirators’ different 8

levels of involvement in the narcotics trade. 9

5be discerned? Nothing, or at least not much, in the statutes at issue tells us to 1

exclude some or all persons not within the designated category from accomplice 2

liability. 3

In my view, it is helpful in most cases to look to the traditional principles 4

derived from the common law, and embodied in the legislation and judicial 5

decisions of the fifty states, which have the primary responsibility for enforcing 6

criminal law in this country. That is not an idiosyncratic position of my own; it 7

was the view expressed by Justice Jackson, writing for a unanimous Supreme 8

Court in Morissette v. United States

, 342 U.S. 246 (1952). The Morissette Court 9

looked to the common law and the rulings of “[s]tate courts of last resort, on 10

whom fall the heaviest burden of interpreting criminal law in this country,” to 11

interpret a federal statute (the prohibition on theft of federal property, now 12

codified at 18 U.S.C. § 641) that lacked “any express prescription of criminal 13

intent.” Id

. at 260–61. Justice Jackson concluded that, since Congress acted against 14

the backdrop of “an unbroken course of judicial decision in all constituent states 15

of the Union,” its silence about mens rea reflected the adoption of common

‐ law 16

principles, rather than their rejection. Id

. at 261–62. 17

As our principal opinion today correctly points out, the Supreme Court in 18

6Gebardi seems to have considered its ruling, rejecting conspiratorial liability 1

under the Mann Act for women who agreed to be transported across state lines, 2

as a slight extension of the traditional common

‐ law rules. Court Op. 26

S 27. But 3

this fact alone would not persuade me that Gebardi opens a broad door to finding 4

“legislative policy” exceptions to the general principle that persons outside 5

defined legislative categories of principal liability may still be guilty of 6

conspiracy and complicity. In codifying the general consensus of common

‐ law 7

complicity principles, the Model Penal Code confined the exceptions to two 8

closely related situations, proposing to exclude from accomplice liability only 9

“victim[s] of [the] offense,” MPC § 2.06(6)(a), and those whose “conduct is 10

inevitably incident to its commission” in light of the definition of the offense, id

. 11

§ 2.06(6)(b). The Commentary to these proposals, which extensively discusses the 12

many decisions classifying persons as accomplices or not across a variety of 13

crimes, treats Gebardi as an example of the latter exception. See American Law 14

Institute, Model Penal Code and Commentaries, § 2.06 at 323

S 25 & nn.74, 82. 4 15

4 Indeed, the language of the second exception is closely derived from that of

Justice Stone in Gebardi

, who wrote:

We think it a necessary implication of that policy that

when the Mann Act and the conspiracy statute came to

be construed together, as they necessarily would be, the

7The Fifth Circuit’s decision in United States v. Castle

, 925 F.2d 831 (5th Cir. 1

1991), illustrates a classic application of the Gebardi principle to the FCPA. There, 2

the government attempted to prosecute the foreign official who received a bribe 3

from representatives of a domestic concern for conspiracy to violate the FCPA. 4

Such a prosecution runs directly in the face of Gebardi and its common

‐ law 5

predecessors. As the Fifth Circuit ruled, “Congress intended in both the FCPA 6

and the Mann Act to deter and punish certain activities which necessarily 7

involved the agreement of at least two people, but Congress chose in both 8

statutes to punish only one party to the agreement.” Id

. at 833. Thus, “the very 9

individuals whose participation was required in every case

— the foreign 10

officials accepting the bribe

— were excluded from prosecution for the 11

substantive offense.” Id

. at 835. In such a case, it makes sense to conclude that 12

Congress must have intended to impose liability only on the American bribe 13

same participation which the former contemplates as an

inseparable incident of all cases in which the woman is a

voluntary agent at all, but does not punish, was not

automatically to be made punishable under the latter. It

would contravene that policy to hold that the very

passage of the Mann Act effected a withdrawal by the

conspiracy statute of that immunity which the Mann

Act itself confers.

267 U.S. at 123 (emphasis added).

8giver, and not on the foreign official who receives the bribe, even though the 1

latter plainly facilitates the criminal conduct of the bribe giver. The legislative 2

history cited in the Court’s opinion corroborates that intuition. If anything is clear 3

from that history, it is that Congress was concerned about intruding into foreign 4

sovereignty by attempting to punish under American law foreign officials taking 5

bribes from Americans on their own soil. 6

It is not at all clear to me, however, that Hoskins benefits from the Gebardi 7

principle. Although every bribe given by an American company to a foreign 8

government official in return for favorable official treatment inherently involves 9

such a foreign official (the foreign official’s receipt of the bribe is an “inseparable 10

incident,” in Justice Stone’s phrase, of the American bribe

‐ giver’s violation of the 11

FCPA), not every such bribe involves the direction of the American company’s 12

action, or the provision of expert advice on how to execute the scheme, by an 13

executive of a foreign parent of the American company. Thus, while Congress 14

could not help but be aware that every bribe given abroad by an affiliate of an 15

American entity involved by definition a foreign official who received the bribe, 16

there is no particular reason to think that the conceivable (but somewhat arcane) 17

case of a foreign parent company’s executives who directed, supervised, or 18

9assisted an American company to pay a bribe was necessarily present to the 1

minds of the members of Congress who voted to adopt the FCPA. 2

II 3

If this case involved an ordinary criminal statute with purely domestic 4

applications, then, I would likely reach a different conclusion here. But as Justice 5

Jackson also explained in Morissette

, while in many cases Congress can best be 6

understood to have created federal criminal law against the backdrop of 7

traditional common

‐ law principles of criminal liability, in some instances 8

Congress faces novel situations not anticipated by the common law of crimes, 9

and legislates “to call into existence new duties and crimes.” 342 U.S. at 253. In 10

doing so, Congress may have to deal with issues that are unique to federal law. 11

The FCPA, for example, is not an ordinary domestic criminal law, but a 12

novel expansion of criminal liability to impose duties on American businesses to 13

conform to domestic ethical standards even when they operate beyond our 14

borders, in lands with different cultures, laws, and traditions. I agree with my 15

colleagues that the extraterritorial effects of the FCPA require us to exercise 16

particular caution before extending its reach even farther than that expressly 17

declared by the statutory text. Although the FCPA explicitly and by design 18

10applies extraterritorially, the same concerns that generate a presumption against 1

implying extraterritorial application of United States law, see Morrison v. National 2

Australia Bank, Ltd.

, 561 U.S. 247 (2010) warrant special caution in applying 3

normal principles of accessorial liability when Congress has delineated the 4

particular circumstances in which the statute applies abroad. 5

In adopting the FCPA, Congress sought to criminalize wrongful conduct 6

by Americans and those who in various ways work with Americans, while 7

avoiding unnecessary imposition on the sovereignty of other countries whose 8

traditions and laws may differ from our own. The legislative history described in 9

the Court’s opinion demonstrates that, in confronting the delicate line

‐ drawing 10

exercises involved in balancing these concerns, Congress intended to limit the 11

overseas applications of the statute to those that it explicitly defined. The 12

particular situation of someone like Hoskins, who is alleged to have participated 13

in directing or assisting Americans to violate the FCPA, was not explicitly 14

discussed by Congress, and such a case might well never have occurred to those 15

drafting the law. The extraterritorial application that primarily concerned 16

Congress was the potential intrusion into the sovereignty of the nations whose 17

officials were bribed. But we do not sit to decide how Congress might have 18

11written the law if it had specifically considered this case. We can only apply the 1

law that Congress did write, which limits the extraterritorial application of the 2

FCPA to specific cases that do not include Hoskins’s situation. 3

I therefore think that a combination of the presumption against 4

extraterritorial application of United States law generally discussed in Part II D of 5

the majority opinion, and the legislative history, discussed in Part II C 3 6

demonstrating that Congress drew lines in the FCPA out of specific concern 7

about the scope of extraterritorial application of the statute, warrant affirmance of 8

the district court’s partial dismissal of the indictment in this case. 9

III 10

I would be remiss, finally, not to note that Congress might want to revisit 11

the statute with this case in mind, as the result we reach today seems to me 12

questionable as a matter of policy. The FCPA represents an effort by the United 13

States to keep its own nationals free of corruption when dealing in foreign 14

countries where corruption is endemic. Such corruption undermines the ethical 15

foundations of American businesses, and risks accustoming American 16

businesspeople and corporations to corrupt practices that they encounter abroad, 17

with the attendant possibility of importing back to the United States practices 18

12they become familiar with in countries with less developed principles of the rule 1

of law and the transparency and impartiality of government regulation. 2

Moreover, by embroiling American companies in the corrupt activities of foreign 3

officials, such bribery tends to perpetuate the corruption of developing nations, 4

to the long

‐ run disadvantage of the United States both in foreign policy (by 5

associating the United States and its citizens and businesses with unpopular 6

corrupt regimes) and in commerce (by perpetuating the corruption “tax” levied 7

on all those who do business with such regimes). See Court Op. 50

S 51 & n.7 8

(discussing purposes of the FCPA). 9

As noted above, these important purposes must be balanced against a 10

concern about intruding into foreign sovereignty. It is thus not surprising that 11

Congress chose to stop American businesses from engaging in the corrupt 12

cultures of countries where they may do business, but did not attempt to reform 13

those countries themselves by punishing their public officers. 14

If the charges in the indictment are proved true, however, the prosecution 15

of Hoskins does not implicate that concern. Hoskins was not an official of a 16

corrupt foreign government, operating in a legal and business culture distinct 17

from that of the United States and other Western democracies. He was, rather, a 18

13citizen of the United Kingdom, employed by a British subsidiary of the French 1

parent company of the American entity that allegedly paid bribes to Indonesian 2

legislators to secure business for the American company, working in France from 3

the offices of a French subsidiary of the same French parent. Both his country of 4

citizenship (the United Kingdom) and the country where he worked and where 5

the company whose interests he was ultimately advancing was incorporated 6

(France) are signatories of the Organisation for Economic Co

‐ operation and 7

Development (“OECD”) Convention on Combating Bribery of Foreign Public 8

Officials in International Business Transactions, and are thus committed, as is the 9

United States, to enacting legislation along the lines of the FCPA. 5 Although any 10

prosecution of a foreign national for actions taken on foreign soil raises some 11

concern about possible friction with other countries, the prosecution of someone 12

in Hoskins’s position does not threaten a foreign country’s sovereign power to 13

select, retain, and police the officials of its own government, nor does it conflict 14

with the policies of the countries involved. 15

5 As the Court’s opinion describes, the OECD Convention was a diplomatic

initiative of the United States to encourage its principal trading partners and

competitors in international commerce to enact anti

‐ corruption laws similar to

those of the FCPA. The 1998 FCPA amendments were adopted in part to conform

American law to the Convention’s requirements. See Court Op. 55

S 63.

14Nor were the effects of Hoskins’s alleged actions felt only in his own 1

countries of citizenship and employment. Hoskins is alleged to have been part of 2

the team that reached into the United States to counsel and procure the 3

commission of an American crime by an American company, and to assist that 4

company in executing bribes in violation of American law. A prosecution on 5

these facts does not evince an effort by the United States to “rule the world,” RJR 6

Nabisco, Inc. v. European Cmty.

, 136 S. Ct. 2090, 2100 (2016), but rather an effort to 7

enforce American law against those who deliberately seek to undermine it. 8

Moreover, the FCPA explicitly contemplates the prosecution of at least 9

some foreign nationals who operate entirely abroad, in that it penalizes foreign 10

nationals who act as the agents of American companies in paying bribes abroad. 11

Thus, for example, if Alstom U.S. had channeled its bribes to Indonesian officials 12

through Indonesian citizens who were low

‐ level Alstom employees in Indonesia, 13

the FCPA would appear to penalize those employees. Indeed, our decision today 14

leaves intact the possibility that Hoskins himself may be convicted under this 15

indictment for violating the FCPA, if the government establishes that he 16

functioned as the agent of the American company, rather than as one who 17

directed the actions of the American company in the interests of its French parent 18

15company. That seems to me a perverse result, and one that is unlikely to have 1

been specifically anticipated or intended by Congress. It makes little sense to 2

permit the prosecution of foreign affiliates of United States entities who are 3

minor cogs in the crime, while immunizing foreign affiliates who control or 4

induce such violations from a high perch in a foreign parent company. That is the 5

equivalent of punishing the get

‐ away driver who is paid a small sum to facilitate 6

the bank robber’s escape, but exempting the mastermind who plans the heist. 7

It is for Congress to decide whether there are sound policy reasons for 8

limiting the punishment of foreign nationals abroad to those who are agents of 9

American companies, rather than to those who make American companies their 10

agents. Our only task is to enforce the laws as Congress has written them. While I 11

see no reason to believe that Congress specifically contemplated a case quite like 12

this one, I agree that the lines drawn in the FCPA, which were crafted specifically 13

to define when extraterritorial prosecutions would be permitted, do not 14

encompass the present case. I therefore concur in the opinion and judgment of 15

the Court.

16