United States v. Hoskins
902 F.3d 69 (2018)
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Rule of Law:
A person cannot be charged with conspiracy to violate or aiding and abetting a violation of the Foreign Corrupt Practices Act (FCPA) if they do not fall within one of the specific categories of persons enumerated as liable in the statute and acted entirely outside of U.S. territory.
Facts:
- Lawrence Hoskins, a citizen of the United Kingdom, was an employee of Alstom S.A., a French global company.
- From 2002 to 2009, Hoskins was assigned to work with Alstom Resources Management, a French subsidiary of Alstom S.A.
- A bribery scheme centered on Alstom's American subsidiary, Alstom Power, Inc. (Alstom U.S.), which sought to secure a $118 million contract from the Indonesian government.
- Alstom U.S. and associated individuals allegedly retained two consultants to bribe Indonesian officials.
- Hoskins, while working from France, was allegedly responsible for approving payments to these consultants, knowing that a portion of the funds was intended for bribes.
- Hoskins communicated via email and phone with U.S.-based coconspirators regarding the scheme while they were in the United States.
- Hoskins never traveled to the United States during the period the alleged bribery scheme was ongoing.
Procedural Posture:
- The U.S. Government filed a Third Superseding Indictment against Lawrence Hoskins in the U.S. District Court for the District of Connecticut, charging him with conspiracy to violate the FCPA, among other counts.
- Hoskins filed a motion to dismiss Count One, arguing that as a foreign national who acted abroad and did not belong to any category of persons covered by the FCPA, he could not be charged under conspiracy or aiding-and-abetting theories.
- The government filed a motion in limine seeking to preclude Hoskins from making this argument at trial regarding substantive FCPA counts.
- The district court granted in part Hoskins's motion to dismiss, striking the portions of the indictment that relied on conspiracy or aiding and abetting liability, unless the government could prove Hoskins was an agent of a domestic concern.
- The district court denied the government's motion in limine.
- The U.S. Government, as appellant, appealed the district court's rulings to the U.S. Court of Appeals for the Second Circuit, with Hoskins as the appellee.
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Issue:
Does the Foreign Corrupt Practices Act (FCPA) permit the government to charge a foreign national, who does not fall within the statute's enumerated categories of liable persons and who acted entirely outside the United States, with conspiracy to violate or aiding and abetting a violation of the FCPA?
Opinions:
Majority - Judge Pooler
No. A foreign national who is not an agent of a domestic concern and acts outside U.S. territory cannot be held liable for conspiring to violate or aiding and abetting a violation of the FCPA. While the general rule is that a person can be liable for conspiracy even if incapable of committing the substantive offense, there is an exception where there is an "affirmative legislative policy" to exclude a certain class of persons from liability, as established in Gebardi v. United States. The court found such a policy in the FCPA's text, structure, and legislative history. The text and structure meticulously define the specific categories of persons liable for FCPA violations, deliberately omitting foreign nationals who are not agents of U.S. companies and who act outside the U.S. The legislative history reveals that Congress consciously moved away from relying on general conspiracy and complicity statutes and instead chose to precisely enumerate the categories of liable individuals due to concerns about extraterritoriality and due process for foreign nationals. Furthermore, the presumption against extraterritoriality dictates that an ancillary offense like conspiracy cannot expand the jurisdictional reach of a statute beyond its explicit terms. Therefore, the government cannot use conspiracy or complicity charges to circumvent the FCPA's carefully drawn territorial and personal limitations. However, the court reversed the dismissal of one conspiracy charge because if the government can prove Hoskins was an "agent" of Alstom U.S., he would fall within a covered category and could be liable for conspiring with others.
Concurring - Judge Lynch
No. While the baseline rule allowing conspiracy liability for individuals incapable of committing the substantive offense is strong, this case represents a narrow exception driven by the unique extraterritorial nature of the FCPA. The presumption against applying U.S. law abroad warrants special caution. Congress, in enacting the FCPA, engaged in a delicate balancing act between fighting corruption and respecting foreign sovereignty, resulting in carefully drawn jurisdictional lines. Applying general principles of conspiracy and complicity here would improperly extend the statute's reach beyond what Congress explicitly defined. Although the outcome may seem questionable from a policy perspective—potentially immunizing a foreign mastermind while punishing low-level agents—it is for Congress, not the courts, to amend the statute if it desires a different result.
Analysis:
This decision significantly restricts the U.S. government's ability to prosecute foreign nationals under the FCPA. It establishes that general criminal statutes, such as those for conspiracy and aiding and abetting, cannot be used to circumvent the specific jurisdictional limitations Congress deliberately wrote into the FCPA. The ruling forces prosecutors to prove that a foreign national acting abroad fits squarely into one of the statute's enumerated categories, most notably by establishing an agency relationship with a U.S. issuer or domestic concern. This holding reinforces the importance of the presumption against extraterritoriality and solidifies the Gebardi exception as a tool for interpreting congressional intent in complex statutory schemes.
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