On August 13, the U.S. District Court for the District of Connecticut held in the individual prosecution of Lawrence Hoskins, a former executive of the U.K. division of Alstom Power, S.A., a French power and transportation company, that the government cannot charge a non-resident foreign national with conspiracy to violate the FCPA if he is not subject to direct liability under the statute due to lack of jurisdiction.  United States v. Hoskins, No. 3:12-CR-238 (D. Conn. Aug. 13, 2015).

Under the FCPA’s anti-bribery provisions, jurisdiction extends to three types of individuals and entities: (1) domestic concerns, defined as U.S. citizens, residents, or nationals, or any company organized under the laws of a U.S. territory or having its principal place of business in the U.S.; (2) a United States issuer of securities, or any officer, director, employee, or agent thereof; and (3) any person who while in United States territory commits an act in furtherance of an FCPA violation.  See 15 U.S.C. §§ 78dd-1, 78dd-2, 78dd-3.  The government, however, has maintained a more expansive view of the FCPA’s jurisdiction.  As detailed in its FCPA Resource Guide, the government has argued that “[a] foreign national or company may also be liable under the FCPA if it aids and abets [or] conspires with . . . an issuer or domestic concern, regardless of whether the foreign national or company itself takes any action in the United States.”  This theory of liability was recently tested in Hoskins.

In Hoskins, the government alleged that Hoskins approved and authorized payments to consultants retained for the sole purpose of paying bribes to Indonesian government officials to secure a contract to build power stations for Indonesia’s state-owned electric company.  Initially the indictment alleged that Hoskins was an agent of Alstom’s U.S. subsidiary, and thus an agent of a domestic concern.  That count of the indictment was later amended to allege that he conspired by acting “together with” a domestic concern to violate the FCPA.  Hoskins moved to dismiss the count, arguing that an individual cannot be prosecuted for conspiracy to violate the FCPA when he himself is not subject to the statute’s jurisdiction.

The district court agreed and applied the doctrine set forth in Gebardi v. United States, 287 U.S. 112 (1932):  where Congress passes a criminal statute that excludes a certain class of individuals from liability, the government cannot evade congressional intent by charging those same individuals under a conspiracy or aiding and abetting theory of liability.  The court examined the FCPA’s text and legislative history and determined that Congress did not intend to extend accomplice liability to non-resident foreign nationals who are not otherwise subject to direct liability.  The court ultimately ruled that the government would have to prove at trial that Hoskins was acting as an agent of a domestic concern – and therefore subject to direct liability – in order to allege that he conspired to violate or aided and abetted a violation of the FCPA.