CORRUPTION AND BRIBERY OF PUBLIC OFFICIALS (continued)
Foreign Corrupt Practices Act (continued)
Case Law Interpreting the Foreign Corrupt Practices Act
Prior to being amended in 1998, the FCPA's criminal penalties only applied to officers, directors or stockholders; agents and employees were only subject to civil penalties. See United States v. Bodmer, 342 F. Supp. 2d 176, 182-83 (S.D.N.Y. 2004). However, the 1998 amendments made it clear that the FCPA's criminal penalties applied to agents and employees as well. Id at 181. It "treats officers, directors, agents and employees the same, regardless of citizenship, nationality, and residency." Id. at 185 n.9.
It is important to note that the FCPA "criminalizes only those payments that are intended to (1) influence a foreign official to act or make a decision in his official capacity, or (2) induce such an official to perform or refrain from performing some act in violation of his duty, or (3) secure some wrongful advantage to the payor. And even then, the FCPA criminalizes these kinds of payments only if the result they are intended to produce—their quid pro quo—will assist (or is intended to assist) the payor in efforts to get or keep some business for or with "any person." United States v. Kay, 359 F.3d 738, 743 (5th Cir. 2004). However, the court conceded that the FCPA's "language is ambiguous." Id. In other words, there is a "statutory construction problem [that] results from the failure of the language of the FCPA to give a clear indication of the exact scope of the business nexus element; that is, the proximity of the foreign official's bargained-for action or inaction, and, on the other hand, the assistance provided by or expected from those results in helping the briber to obtain or retain business." Id. at 744. After examining the legislative history, the court concluded that "the business nexus requirement is not to be interpreted unduly narrowly." Id. at 754. Therefore, the court would not "hold as a matter of law that Congress meant to limit the FCPA's applicability to cover only bribes that lead directly to the award or renewal of contracts. Instead [the court held] that Congress intended for the FCPA to apply broadly to payments intended to assist the payor, either directly or indirectly, in obtaining or retaining business for some person, and that bribes paid to foreign tax officials to secure illegally reduced customs and tax liability constitute a type of payment that can fall within this broad coverage." Id. at 755.
18 U.S.C. § 219 (2005).
Officers and employees acting as agents of foreign principals
It is a crime under section 219(a) for a public official to be, or act as an agent of, a foreign principal. The punishment for a violation of section 219 is a fine, imprisonment for up to two years, or both.
Case Law Interpreting Section 219
Surprisingly enough, there are no cases reported that deal with section 219.
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