934 F.3d 110
2d Cir.2019Background
- Ng Lap Seng, a Macau developer, paid over $1 million to two U.N. ambassadors (Francis Lorenzo and John Ashe) to secure a formal U.N. commitment to host a permanent UNOSSC Expo at his Macau convention center.
- Payments included monthly sham consulting fees, a family vacation, a $200,000 concert payment, and other transfers disguised through intermediaries and no‑show contracts.
- Lorenzo pleaded guilty and cooperated; Ashe served for a time as President of the U.N. General Assembly. Lorenzo and Ashe used ambassadorial powers to place and later revise a letter in the General Assembly record, and to obtain a UNOSSC "pro bono" agreement with Ng's company.
- A jury convicted Ng of conspiracy and substantive counts under 18 U.S.C. § 666, the FCPA (15 U.S.C. §§ 78dd‑2, 78dd‑3), and related money‑laundering charges; sentence: 48 months, forfeiture, fine, and restitution.
- On appeal Ng raised: (1) § 666 does not cover the U.N.; (2) McDonnell v. United States requires an "official act" instruction for § 666 and the FCPA; (3) insufficiency of evidence (including the "corruptly" element); (4) FCPA "obtaining or retaining business" element; and derivative challenges to money‑laundering counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the U.N. is an "organization" under 18 U.S.C. § 666 | Govt: § 666's term "organization" should be given its broad Title 1/18 meaning and can include non‑governmental legal persons such as public international organizations | Ng: "Organization" should be read to exclude public international organizations (i.e., limit to private entities); U.N. is not covered | Court: § 666 covers non‑government legal persons; "organization" excludes governments but includes public international organizations like the U.N.; Bahel supports § 666 prosecution of U.N. bribery |
| Whether McDonnell's "official act" definition limits quid pro quo under § 666 and FCPA | Govt: McDonnell interprets 18 U.S.C. § 201 and does not control § 666/FCPA, whose quid pro quo language is broader | Ng: McDonnell's limits on "official act" must apply to avoid vagueness and federalism problems; district court's instruction was defective | Court: McDonnell stems from § 201; its official‑act test does not delimit § 666 or FCPA; any § 666 instruction using McDonnell was unnecessary but harmless beyond a reasonable doubt |
| Sufficiency of evidence and meaning of "corruptly" (mens rea) | Govt: Evidence (payments, sham contracts, record tampering, letters, Zhou's pro‑bono agreement) supports corrupt intent to influence U.N. actions | Ng: Government failed to prove required element of intent to induce breach of duty; insufficient proof of duties owed to U.N. | Court: "Corruptly" does not require proof of intent to procure breach of duty; evidence was sufficient (Ashe as GA President had duties and influenced UNOSSC action) |
| FCPA "obtaining or retaining business" — must "business" be commercial and did Ng obtain business while offering free use? | Ng: "Business" should mean commercial benefit to briber; a pro‑bono agreement imposes no commercial benefit so fails the FCPA element | Govt: FCPA covers obtaining/retaining/directing business for or with any person; contracts (even pro bono) can constitute "business" and can channel commercial benefit | Court: Jury could reasonably find "business" in commercial sense; directing a contract to the U.N. could obtain/retain business (including indirect commercial benefit), so element satisfied |
Key Cases Cited
- United States v. Bahel, 662 F.3d 610 (2d Cir.) (U.N. bribery prosecuted under § 666 upheld)
- McDonnell v. United States, 136 S. Ct. 2355 (2016) (Supreme Court defining "official act" under § 201)
- United States v. Boyland, 862 F.3d 279 (2d Cir.) (McDonnell standard does not apply to § 666)
- Salinas v. United States, 522 U.S. 52 (1997) (interpretation of § 666's expansive language)
- Sabri v. United States, 541 U.S. 600 (2004) (Congressional power to protect spending objects from corrupt administrators)
- United States v. Alfisi, 308 F.3d 144 (2d Cir.) ("corruptly" does not require intent to procure breach of duty)
- United States v. Kozeny, 667 F.3d 122 (2d Cir.) (approved instruction on "corruptly" in FCPA context)
- United States v. Rooney, 37 F.3d 847 (2d Cir.) (discussion of corruption and duty in § 666 context)
- United States v. Sun‑Diamond Growers of Cal., 526 U.S. 398 (1999) (distinguishing gratuity from quid pro quo bribery)