United States v. Donald Castle, and Darrell W.T. Lowry
925 F.2d 831 (1991)
Rule of Law:
When a substantive criminal statute deliberately omits punishment for a necessary class of participants in the proscribed conduct, that class of persons cannot be prosecuted for conspiracy to violate the statute, as this would contravene the affirmative legislative policy to leave their participation unpunished.
Facts:
- John Blondek and Vernon R. Tull were employees of Eagle Bus Company, a U.S. corporation.
- Donald Castle and Darrell W.T. Lowry were officials of the Saskatchewan provincial government in Canada.
- Eagle Bus Company submitted a bid to provide buses to the Saskatchewan provincial government.
- To ensure their bid would be accepted, Blondek and Tull paid a $50,000 bribe to Castle and Lowry.
Procedural Posture:
- The United States charged John Blondek, Vernon R. Tull, Donald Castle, and Darrell W.T. Lowry with conspiracy to violate the FCPA in the U.S. District Court for the Northern District of Texas.
- Defendants Castle and Lowry, the Canadian officials, filed a motion to dismiss the indictment against them.
- The District Court granted the motion and dismissed the indictment against Castle and Lowry.
- The United States, as appellant, appealed the dismissal to the U.S. Court of Appeals for the Fifth Circuit.
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Issue:
Does the general conspiracy statute, 18 U.S.C. § 371, permit the prosecution of foreign officials for conspiring to violate the Foreign Corrupt Practices Act (FCPA) when the FCPA itself does not criminalize the receipt of a bribe by a foreign official?
Opinions:
Majority - Per Curiam (adopting the opinion of Sanders, J.)
No. The general conspiracy statute does not permit the prosecution of foreign officials for conspiring to violate the FCPA. The court reasoned that Congress, in drafting the FCPA, made a deliberate choice to punish U.S. persons and entities who pay bribes but to exclude from punishment the foreign officials who receive them. This reflects an 'affirmative legislative policy' to leave the foreign officials' acquiescence unpunished. Relying on the precedent of Gebardi v. United States, which held that a woman who consented to being transported in violation of the Mann Act could not be charged with conspiracy, the court found the situations analogous. In both cases, the statute criminalizes the conduct of one party to a necessary agreement but not the other. To allow a conspiracy prosecution against the excluded party would permit the executive branch to override clear congressional intent. The court further noted that the FCPA's legislative history, which reveals concerns about diplomatic and jurisdictional difficulties, supports the conclusion that Congress intentionally chose not to prosecute foreign officials, leaving that responsibility to their home countries.
Analysis:
This decision solidifies the 'Gebardi rule,' establishing that the government cannot use the general conspiracy statute to prosecute a class of individuals that Congress intentionally excluded from liability under a specific substantive criminal statute. It reinforces the principle of legislative supremacy, preventing prosecutors from expanding the reach of a law beyond its congressionally intended scope. For the FCPA, this case confirms that liability is a 'one-way street' targeting the supply side (the bribe-payers) of foreign corruption, reflecting a congressional judgment about foreign policy, comity, and prosecutorial practicality. Future attempts to charge classes of persons exempted from a substantive offense with conspiracy will face a significant hurdle established by this precedent.
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