Bribery Conviction Reinforces Broad Reach of the FCPA

Hoskins was charged in connection with the DOJ’s prosecution of Alstom, which resulted in a $770 million corporate settlement in 2014. Prior to the trial, Hoskins was alleged to have approved the selection of, and authorized payments to, consultants knowing that a portion of the money was intended to influence Indonesian officials. Because Hoskins’ actions did not occur in the United States and Hoskins never worked for Alstom’s American subsidiary, the DOJ charged Hoskins with conspiring to violate the FCPA based on its longstanding theory that conspiracy and aiding and abetting allow it to prosecute foreign nationals for FCPA violations even if those individuals otherwise would not be subject to liability under the FCPA.

The Second Circuit rejected that expansive view of the FCPA’s jurisdiction in August 2018. The Second Circuit held that an individual cannot be guilty as a co-conspirator or accomplice if he or she is incapable of committing the crime as a principal. More specifically, the Second Circuit reasoned that because the FCPA omits jurisdiction over foreign nationals who act outside of the United States and are not officers, directors, employees, agents or stockholders of an issuer or a domestic concern, Hoskins cannot instead be charged as a co-conspirator or accomplice to an FCPA violation. The court went on, however, to state that if prosecutors are able to show that Hoskins acted as an agent of Alstom’s American subsidiary (which is a domestic concern under the FCPA), then there would not be improper extraterritorial application of the FCPA to his conduct. After that ruling, the DOJ relied on the theory that although Hoskins worked for Alstom’s parent company in Paris, he also acted as an agent of Alstom’s American subsidiary for purposes of jurisdiction under the FCPA.

During Hoskins’ trial, the DOJ succeeded in presenting evidence to show that Hoskins acted as an agent for Alstom’s American subsidiary when he helped arrange bribes in Indonesia. Hoskins was convicted of 11 of 12 counts, including six counts of violating the FCPA, three (out of four) counts of money laundering and two counts of conspiracy. According to the evidence presented at trial, Hoskins engaged in a conspiracy to pay bribes to officials in Indonesia, including a high-ranking member of the Indonesian Parliament and the president of the state-owned electricity company, in exchange for assistance in securing a $118 million contract to provide power-related services for the citizens of Indonesia. Hoskins and his co-conspirators were successful in securing the project and subsequently made payments to two consultants for the purpose of bribing the Indonesian officials.

Hoskins’ sentencing has been scheduled for January 31, 2020.