The US Court of Appeals for the Second Circuit handed the
Department of Justice a rare defeat on 24 August by holding that
prosecutors could not assert conspiracy or aiding and abetting
liability to effectively circumvent the jurisdictional language of
the Foreign Corrupt Practices Act.
In United States v Hoskins, the Second Circuit grappled
with whether a foreign national who could not be charged as a
principal for violating the FCPA could be guilty as a
co-conspirator or an accomplice – a strategy the DOJ has
pursued in past cases and asserted in its published guidance. In
reviewing the language of the FCPA as well as its legislative
history, the Second Circuit affirmed the decision of the district
court and found that the DOJ's overly broad jurisdictional
argument was beyond what the US Congress intended for the
statute.
