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United States v. Hoskins

District Court, D. Connecticut
123 F. Supp. 3d 316 (2015)
ELI5:

Rule of Law:

A non-resident foreign national cannot be held criminally liable for conspiracy to violate the Foreign Corrupt Practices Act (FCPA) if they do not fall within one of the specific categories of persons subject to direct liability under the statute, such as being an agent of a domestic concern or acting within U.S. territory.


Facts:

  • Lawrence Hoskins, a UK national, was employed as a Senior Vice President for the Asia Region by Alstom UK and was assigned to work for an Alstom entity in France.
  • Hoskins was alleged to have participated in a bribery scheme from approximately 2002 to 2009.
  • The scheme was intended to help Alstom Power, Inc. (“Alstom Power U.S.”), a Connecticut-based company, secure a $118 million contract to build power stations in Indonesia (the Tarahan Project).
  • The government alleged Hoskins performed functions on behalf of Alstom Power U.S. and that his responsibilities included approving payments to "consultants" who were retained to bribe Indonesian officials.
  • It was undisputed for the purposes of the motion that Hoskins never physically entered the territory of the United States in connection with the scheme.

Procedural Posture:

  • The United States government indicted Lawrence Hoskins on charges including conspiracy to violate the Foreign Corrupt Practices Act (FCPA).
  • Hoskins filed a first Motion to Dismiss the Second Superseding Indictment, arguing he could not be considered an 'agent of a domestic concern' under the FCPA.
  • The U.S. District Court denied the first motion, ruling that the existence of an agency relationship was a factual question for a jury.
  • The government then filed a Third Superseding Indictment, which altered the language of the conspiracy charge (Count One).
  • Hoskins filed a second Motion to Dismiss Count One of the Third Superseding Indictment, asserting that the government was now pursuing a legally invalid theory that he could be convicted of conspiracy even if not an agent.
  • Concurrently, the government filed a motion in limine seeking to preclude Hoskins from arguing to the jury that proof of agency was the sole basis for conviction.

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Issue:

Does a non-resident foreign national, who is not an agent of a domestic concern and did not commit any acts in furtherance of a bribery scheme while in the territory of the United States, become subject to criminal liability for conspiracy to violate the Foreign Corrupt Practices Act (FCPA)?


Opinions:

Majority - Janet Bond Arterton, District Judge

No. A non-resident foreign national cannot be held liable for conspiracy or as an accomplice to an FCPA violation if that person does not independently fall within one of the statute's enumerated categories of liability. The court based its reasoning on the Gebardi principle, which holds that where Congress demonstrates an affirmative legislative policy to exclude a certain class of individuals from criminal liability under a substantive statute, the government cannot use general conspiracy or aiding and abetting statutes to override that congressional intent. The court found that the text, structure, and legislative history of the FCPA show that Congress carefully and deliberately delineated the specific categories of persons subject to its jurisdiction: (1) issuers and domestic concerns, along with their officers, directors, employees, and agents; (2) U.S. persons acting abroad; and (3) any person taking an act in furtherance of a bribe while within the territory of the United States. By creating this specific framework, Congress implicitly intended to exclude persons who fall outside these categories, such as a non-resident foreign national who is not an agent and acts entirely outside the U.S. To allow prosecution via a general conspiracy theory would circumvent this clear legislative choice.



Analysis:

This decision significantly restricts the U.S. government's jurisdictional reach in prosecuting foreign nationals under the FCPA. It establishes that the government cannot use general accomplice liability theories as a 'backdoor' to charge individuals who fall outside the specific categories of persons enumerated in the Act. The ruling forces prosecutors to first prove that a foreign national meets one of the FCPA's direct liability prongs—such as acting as an 'agent' of a domestic concern or taking an action within U.S. territory—before they can be held liable for conspiracy. This reinforces the principle of statutory interpretation that a detailed and specific legislative scheme can create an implicit exemption from general criminal statutes like those for conspiracy and aiding and abetting.

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