The Department of Justice has long taken the position that those conspiring to violate the FCPA could be charged as co-conspirators, even if they did not fall within the three enumerated categories of those to whom the FCPA’s provisions applied. See, e.g., DOJ & SEC, A Resource Guide to the U.S. Foreign Corrupt Practices Act at 34 (2012) (“Individuals and companies, including foreign nationals and companies, may also be liable for conspiring to violate the FCPA – i.e., for agreeing to commit an FCPA violation – even if they are not, or could not be, independently charged with a substantive FCPA violation.” (emphasis in original)). The Second Circuit recently rejected DOJ’s position, holding that foreign co-conspirators who could not themselves be charged directly under the FCPA cannot be charged as conspirators, either. See United States v. Hoskins, — F.3d –, 2018 WL 4038192 (2d Cir. Aug. 24, 2018). The opinion, though highly academic, has serious practical consequences, insofar as an entire class of potential co-conspirators are excepted from the FCPA’s reach. DOJ had warned that such a holding “would create a gaping loophole in the law that would hinder, rather than promote, the enforcement of the statute, punishing low-level foreign nationals facilitating the bribe scheme on behalf of a domestic concern, but not the foreign national ringleaders of the very same offense.” Brief for Appellant at 46, United States v. Hoskins, — F.3d — (2018) (No. 16-1010). The Second Circuit’s decision proceeds from two established principles in criminal law. First, a defendant’s inability to be charged as a principal does not necessarily mean that he cannot be charged as an accomplice for either conspiracy or complicity. See Hoskins, 2018 WL 4038192 at *6 (collecting cases for this “deeply ingrained” and “firm baseline rule”). Second, notwithstanding the first principle, there is an “affirmative-legislative-policy” exception where the “literal definitions of accomplice liability” under a given statute may nonetheless conflict with the statute’s text, structure, and legislative history such that “conspiracy and complicity liability will not lie.”
