Second Circuit Hears Oral Arguments on Accomplice Theory of Liability Under FCPA

Financial Crimes FCPA

On March 2, 2017, a three judge panel for the United States Court of Appeals for the Second Circuit heard oral arguments in U.S. v. Hoskins.  The government charged U.K. citizen with FCPA violations as part of a larger scheme involving a U.S. subsidiary of a French company.  The citizen, a non-resident foreign national who did not act on U.S. soil and who was an executive of a non-U.S. company, argued in federal district court that Congress did not intend for people like him to be subject to direct FCPA liability, and that the government cannot circumvent Congressional intent by charging him with accomplice liability.  In August of 2015, the federal district court in Connecticut ruled in the citizen’s favor, holding that the government would first have to show that the citizen was subject to direct liability as an agent of a U.S. concern in order to reach accomplice liability.  The legal issues at hand are detailed in previous FCPA Scorecard posts here and here. 

In addition to the important question of the scope of liability of foreign nationals under the FCPA, this argument has a secondary importance related to the right of the government to appeal criminal matters under Title 18 U.S.C. § 3731.  Section 3731 allows the government to appeal “from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof….”  Here, the citizen argues that the court did not dismiss any counts, so the government had no right to make the interlocutory appeal.  For its part, the government argues that the court’s ruling was effectively a dismissal of a portion of a count, making the matter appealable. 

In ruling on the case, the Second Circuit will have the potential to expand or limit both the reach of the FCPA, and the power of the federal government to bring interlocutory appeals when a trial court rules against it in a criminal matter. 

An mp3 of the oral arguments may be downloaded here.