U.S. v. Ng Lap Seng, No. 18-1725 (2d Cir. 2019). In affirming the conviction, the Second Circuit ruled that the holding in McDonnell v. United States—in which the Supreme Court held that prosecutors must prove that a bribe is paid in exchange for an “official act” in cases involving the federal anti-bribery statute (18 U.S.C. §201)—does not apply to prosecutions under the Foreign Corrupt Practices Act (“FCPA”). The Second Circuit clarified in its ruling that the FCPA and the anti-corruption law aimed at protecting federal funding, known as Section 666, are written differently and target a broader set of bribery goals than the federal anti-bribery statute that was at issue in McDonnell.According to the government, defendant “engaged in a sustained effort over five years to bribe two U.N. officials” in order to obtain a formal UN designation for his real estate complex as the permanent site for the annual convention of the UN Office for South-South Cooperation.

McDonnell was convicted of honest services fraud and Hobbs Act extortion. The jury instructions for each of these counts was premised on the bribery statute governing domestic federal officials, 18 U.S.C. § 201, which among other things makes it a crime for a public official to corruptly “demand, seek, receive, accept or agree ‘to receive or accept anything of value’ in return for being ‘influenced in the performance of any official act.’” The statute defines “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official.”

Passive bribery involves anyone who “directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official anything of value with” the intent to accomplish one of three things. 18 U.S.C. Section 201(b)(1). First, to influence an “official act.”

United States v. Sun-Diamond Growers of California, 119 S.Ct. 1402 (1999)In order to violate the federal gratuity statute, 18 U.S.C. § 201(c)(1)(A), the government must prove that the gratuity was given to the official because of his performance of a specific act. It is not enough to merely prove that the gratuity was given because of the official's position generally.

The Court reached this conclusion using both its interpretation of the statutory definition and prior decisions of the Court. First, the Court applied the classic statutory interpretation canon noscitur a sociis (a word is known by the company it keeps) to rule that “question” and “matter,” two terms in 18 U.S.C. §201(a)(3) susceptible to varying meanings, take on the meanings attributable to “cause, suit, proceeding or controversy,” terms also used in the same provision that indicate more circumscribed and formal exercise of governmental power. To find otherwise, the Court suggested, would render the inclusion of the more formal terms superfluous.

overnment official to demand, receive, or agree to receive a bribe from a United States citizen, company, or resident in exchange for obtaining business. The FCPA criminalizes only the “supply” side of illegal foreign bribery—the offering or payment of bribes to foreign government officials. With this addition, both sides are now criminalized.Key Provisions: A Complement to the FCPA The FEPA largely shares the FCPA’s baseline elements. For instance, the FEPA requires the same jurisdictional nexus to the US—demands must be made to an issuer of US securities, to a US domestic concern, or to any person within the territory of the United States—and at the heart of each law is the corrupt exchange or quid pro quo requirement: the bribe demand must be in return for the taking or omission of some official government act or otherwise conferring some business-related benefit. While the FEPA mirrors in significant part the FCPA’s elements, the FEPA is not an amendment to FCPA; rather, it amends 18 U.S.C. §201, the US domestic bribery statute, to include foreign officials. The FEPA also expands on the FCPA’s definition of a foreign official to include not only “any official or employee of a foreign government or any department, agency, or instrumentality thereof” but also any person “acting in an unofficial capacity” on behalf of those entities.Violators of the FEPA will face a maximum of 15 years imprisonment and a maximum fine of $250,000 or three times the value of the bribe, whichever is greater. The FEPA also requires the US Attorney General to submit an annual report summarizing demands made by foreign officials, US diplomatic efforts to protect US entities from foreign bribery, actions taken by the Department of Justice (DOJ) under the new law, and resources or legislative action needed by the DOJ to enforce the FEPA.Until now, US enforcement authorities have relied largely on the FCPA to combat foreign corruption. Under the FCPA, companies and individuals may be charged for the offe

as amended in 1998, the FCPA anti-bribery provisions also extended to foreign firms and persons who cause, directly or through agents, an act in furtherance of such a corrupt payment to take place within the territory of the United States. The FCPA’s jurisdiction, however, has never extended to foreign officials who demand or receive the corrupt payments.Congress intentionally declined to extend the FCPA’s reach to foreign officials because of its concern for the “inherent jurisdictional, enforcement, and diplomatic difficulties” raised by the potential prosecution of non-citizens.Given the jurisdictional limitations of the FCPA, DOJ relied on other federal statutes to pursue foreign officials engaged in corruption, such as mail and wire fraud (18 U.S.C. §§ 1341, 1343 and 1346), the Travel Act (18 U.S.C. § 1952), and money laundering.Each of these laws had their own limitations.At A Glance: Key Elements of the FEPAThe newly enacted FEPA is an amendment to the domestic bribery statute, 18 U.S.C. §201, not the FCPA. Nonetheless, the FEPA largely mirrors the FCPA statutory structure, subject to a few key distinctions. The FEPA makes it “unlawful for any foreign official . . . to corruptly demand, seek, receive, accept, or agree to receive or accept, directly or indirectly, anything of value” from any person while in the territory of the U.S., from an issuer, or from a domestic concern in exchange for—Being influenced in the performance of any official act;Being induced to do or omit to do any act in violation of the official duty of such foreign official or person; orConferring any improper advantage, in connection with obtaining or retaining business for or with, or directing business to, any person.The FEPA defines any “person” or “domestic concern,” similarly to how those terms are defined in the FCPA. The term “person” is very broad and includes any company that has its primary place of business within the United States. A “domestic concern” may be an individual, including lawfu

The impeachment inquiry centered on a “whistleblower complaint” that the president during a July 25, 2019 telephone conversation that encouraged the President of Ukraine to interfere in the 2020 presidential election by investigating the president’s main political rival, former Vice President Joe Biden. The complaint charged that this demand posed a national security risk and constituted a serious abuse of presidential powers.In the wake of the impeachment hearings, media reports have circulated that the Intelligence Committee is prepared to recommend to the House Judiciary Committee that three Articles of Impeachment be brought against the president: abuse of power, obstruction of justice, and contempt of Congress.Criminal Bribery-18 U.S.C. § 201(b)It has also been speculated by media pundits and some legal experts that there is sufficient evidence to charge the president with bribery.But this seems both unlikely and impractical.

The Court rejected Ng’s argument that the FCPA and the federal program bribery statute, 18 U.S.C. § 666, are limited to prohibiting bribes paid in exchange for “official acts.” Ng argued that the jury should have been instructed to use the definition for “official act” established by the Supreme Court in McDonnell v. United States in June 2016 for the domestic bribery statute, 18 U.S.C. § 201, in determining whether he violated § 666 and the FCPA. The Second Circuit held that § 201’s “official act” standard derives from the specific language of that statute and “does not necessarily delimit the quo components of other bribery statutes, such as § 666 or the FCPA,” which the court described as more “expansive” than § 201. (We predicted that a court might reach a similar conclusion in our coverage of the McDonnell decision.)

The charges related to $175,000 in loans, gifts, and other benefits that the McDonnells accepted from the CEO of a Virginia-based company. McDonnell was convicted of various corruption-related charges which hinged on language in the federal bribery statute, 18 U.S.C. § 201, that makes it a crime for “a public official, . . . directly or indirectly, corruptly . . . to receive or accept anything of value” in return for being “influenced in the performance of any official act.” § 201(b)(2).