United States v. Hoskins
123 F. Supp. 3d 316
D. Conn.2015Background
- Lawrence Hoskins, a nonresident former Alstom executive, is charged in Count One with conspiracy to violate the FCPA in connection with alleged bribery to secure an Indonesian power project; the Third Superseding Indictment alleges he "acted together with" a domestic concern.
- Hoskins worked for non-U.S. Alstom affiliates but indictment also alleges he was an agent of Alstom Power US (a domestic concern) and approved payments to consultants.
- The Government contends it may seek conviction either by proving Hoskins was an agent of a domestic concern (direct FCPA liability) or, alternatively, by proving accomplice theories (conspiracy, aiding and abetting, Pinkerton) even if he was not an agent.
- Hoskins moved to dismiss Count One to the extent the Government seeks conviction solely via accomplice liability without proving he was subject to the FCPA as a principal; the Government moved in limine to preclude Hoskins from arguing agency is required.
- The court considered whether antecedent Supreme Court and circuit precedent (notably Gebardi) bars charging or convicting a class of persons under conspiracy/accomplice theories when Congress excluded them from direct liability under the substantive statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nonresident foreign national can be convicted under the FCPA via conspiracy/accomplice theories when he is not subject to direct liability as a principal | Gov't: General conspiracy and aiding-and-abetting statutes apply; accomplice liability may reach persons not directly liable as principals | Hoskins: Gebardi bars prosecuting by conspiracy or accomplice theory when Congress excluded the class from direct liability | Court: Held Gebardi applies — government may not prosecute Hoskins on accomplice theories if he is not proven to be an agent of a domestic concern; motion to dismiss Count One granted in part |
| Whether the Government may preclude defendant from arguing that agency is required for conviction | Gov't: Preclusion proper because accomplice liability can supply alternative bases for conviction | Hoskins: He must be allowed to argue agency is essential because Congress excluded nonresident foreigners from direct reach absent agency or territorial acts | Court: Denied Government's motion in limine; defendant may argue agency is required unless government proves he was an agent |
| Whether the 1998 FCPA amendments (and OECD treaty obligations) require reading accomplice reach to include nonresident foreign nationals acting abroad | Gov't: Amendments and treaty obligations expand reach to "any person" and thus support accomplice liability against foreign actors | Hoskins: Amendments do not eliminate statutory jurisdictional limits (agents of domestic concerns; acts in U.S. territory) | Court: Rejected Government’s expansive reading of OECD and 1998 amendments; treaty does not compel prosecuting nonresident foreign nationals who acted abroad absent statutory hooks |
| Whether Gebardi’s narrowness (per Government) or broader application (per Defendant) governs interpretation of accomplice reach | Gov't: Gebardi is narrow and applies only to necessary parties or protective statutes | Hoskins: Gebardi applies whenever Congress affirmatively excludes a class from substantive liability | Court: Adopted broader view — Gebardi and its progeny support reading FCPA structure/legislative history as evidencing intent to exclude certain foreign nationals from accomplice liability |
Key Cases Cited
- Gebardi v. United States, 287 U.S. 112 (1932) (conspiracy cannot be used to prosecute a class Congress excluded from substantive liability)
- United States v. Castle, 925 F.2d 831 (5th Cir. 1991) (applies Gebardi to hold foreign bribe recipients cannot be prosecuted for conspiracy under the FCPA)
- United States v. Amen, 831 F.2d 373 (2d Cir. 1987) (Gebardi applied to preclude applying kingpin enhancement to persons the statute did not target)
- United States v. Pino-Perez, 870 F.2d 1230 (7th Cir. 1989) (disagrees with broad Gebardi application; favors resolving doubt in favor of aider-and-abettor liability)
- United States v. Esquenazi, 752 F.3d 912 (11th Cir. 2014) (discusses FCPA scope and the 1998 amendments in context of treaty compliance)
- United States v. Ali, 718 F.3d 929 (D.C. Cir. 2013) (ancillary-offense extraterritorial reach generally coterminous with underlying statute)
- Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (statutory interpretation begins with text and structure)