United States v. Hoskins
902 F.3d 69
2d Cir.2018Background
- Lawrence Hoskins, a British national employed by foreign affiliates of Alstom, was indicted alongside U.S. Alstom employees for a scheme to bribe Indonesian officials to obtain a $118 million contract; Hoskins worked from Europe and never traveled to the U.S. during the relevant period.
- The Third Superseding Indictment charged Hoskins with (inter alia) conspiracy to violate the FCPA (Count One) and several substantive FCPA counts premised on aiding and abetting wire transfers from Alstom U.S. bank accounts.
- District court granted in part Hoskins’s motion to dismiss Count One: it barred conspiracy/aiding-and-abetting liability under 15 U.S.C. § 78dd-2 (and § 78dd-3 insofar as the defendant never entered the U.S.) unless the government proved Hoskins fit an FCPA enumerated category (e.g., agent of a domestic concern).
- Government appealed interlocutorily under 18 U.S.C. § 3731 (as amended to permit appeals from dismissal of any part of a count); the Second Circuit found it had jurisdiction and exercised pendent appellate review of the related in limine ruling.
- Central legal question: whether conspiracy or accomplice theories can extend FCPA liability to a foreign national who is not within the statute’s enumerated categories and who acted outside U.S. territory.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Hoskins) | Held |
|---|---|---|---|
| Whether the court has jurisdiction over the government’s interlocutory appeal under 18 U.S.C. § 3731 | § 3731 (post-2002 amendment) permits appeals from dismissal of “any part” of a count; appeal authorized | Margiotta/Tom limited appeals where some liability theory remains; no jurisdiction here | Court: Jurisdiction exists under § 3731; pendent appellate review of related in limine motion granted |
| Whether conspiracy or aiding-and-abetting can impose FCPA liability on persons outside the statute’s enumerated categories (nonresident foreign nationals acting abroad) | Conspiracy/complicity generally allow liability even if defendant could not be principal; FCPA did not affirmatively exclude such application | FCPA’s text, structure, and legislative history show an affirmative congressional policy limiting liability to enumerated classes; conspiracy cannot expand that reach | Court: Affirmed district court — conspiracy/complicity cannot extend FCPA liability beyond the statute’s specified categories (absent agency or presence in U.S.) |
| Whether the presumption against extraterritoriality bars use of conspiracy/complicity to expand FCPA’s reach | Conspiracy/complicity can sometimes reach extraterritorial conduct; OECD obligations and FCPA amendments support broad reach | RJR Nabisco framework and FCPA’s territorial/ categorical limits require clear congressional intent to apply extraterritorially; none for this class | Court: Presumption against extraterritoriality, and RJR Nabisco reasoning, bars expanding FCPA reach by conspiracy/complicity in this context |
| Whether the district court erred in dismissing the conspiracy’s second object (violation of § 78dd-3 requiring acts "while in the territory of the United States") | Government intends to prove Hoskins acted as an agent of a domestic concern, which would place him within § 78dd-2 and permit treating relevant co-conspirators’ U.S. acts as part of the conspiracy | Hoskins argued he never entered U.S. so § 78dd-3 cannot apply to him; Gebardi supports limits | Court: Reversed as to second object — if government proves agency of a domestic concern, § 78dd-3-related object may be charged; district court must reinstate that object |
Key Cases Cited
- Gebardi v. United States, 287 U.S. 112 (1932) (statute’s omission of a class may evidence an affirmative legislative policy precluding conspiracy liability)
- United States v. Amen, 831 F.2d 373 (2d Cir. 1987) (applying Gebardi: statute aimed at “kingpin”—conspiracy/aiding theories cannot expand reach to excluded classes)
- RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (2016) (two-step presumption-against-extraterritoriality framework; extraterritorial application limited to statute’s terms)
- Salinas v. United States, 522 U.S. 52 (1997) (a defendant may be liable for conspiracy even if incapable of committing substantive offense)
- United States v. Rabinowich, 238 U.S. 78 (1915) (non-principals can conspire to commit offenses the principals commit)
- Ocasio v. United States, 136 S. Ct. 1423 (2016) (statutory text and meaning can defeat arguments for limiting conspiracy liability; context matters)