United States District Court, D. Connecticut
Frederic Pierucci, Defendant: Elizabeth A Latif, LEAD
ATTORNEY, Day Pitney LLP-Trmbl St Htfd-CT, Hartford, CT;
Stanley A. Twardy, Jr., LEAD ATTORNEY, Day Pitney LLP-Stmfd,
William Pomponi, Defendant: Hubert J. Santos, Jessica M.
Santos, LEAD ATTORNEYS, Law Offices of Hubert J. Santos,
Lawrence Hoskins, Defendant: Alejandra de Urioste,
Christopher J. Morvillo, David Raskin, LEAD ATTORNEY, PRO HAC
VICE, Clifford Chance U.S. LLP - NY, New York, NY; Brian E.
Spears, Nathan J. Buchok, LEAD ATTORNEYS, Brian Spears LLC,
USA, Plaintiff: Daniel S Kahn, LEAD ATTORNEY, U.S. Department
of Justice, Fraud Section, Criminal Division, Washington, DC;
David E. Novick, LEAD ATTORNEY, U.S. Attorney's
Office-NH, New Haven, CT.
ON DEFENDANT'S SECOND MOTION TO DISMISS THE
Bond Arterton, United States District Judge.
Lawrence Hoskins moves [Doc. # 254] to Dismiss Count One of
the Third Superseding Indictment [Doc. # 209] on the basis
that it charges a legally invalid theory that he could be
criminally liable for conspiracy to violate the Foreign
Corrupt Practices Act (" FCPA" ), 15 U.S.C. §
78dd-1, et seq., even if the evidence does not
establish that he was subject to criminal liability as a
principal, by being an " agent" of a "
domestic concern." Relatedly, the Government moves [Doc.
# 232] in limine to preclude Defendant from arguing
to the jury that it must prove that he was the agent of a
domestic concern because the Government contends that
Defendant can also be convicted under theories of accomplice
liability. For the reasons that follow, Defendant's
Motion to Dismiss Count One of the Third Superseding
Indictment will be granted in part to preclude
Defendant's FCPA conspiracy prosecution from being
de-linked from proof that he was an agent of a domestic
concern and the Government's Motion in Limine is
facts of this case are set forth in detail in the Ruling
[Doc. # 190] on Defendant's
First Motion to Dismiss the Indictment and will be repeated
only as necessary for the legal analysis herein. Briefly, Mr.
Hoskins is alleged to have participated in a bribery scheme
that spanned from 2002 through 2009 for Alstom Power, Inc.
(" Alstom Power U.S." ), a company headquartered in
Windsor, Connecticut, to secure a $118 million project to
build power stations for Indonesia's state-owned and
state-controlled electricity company, Perusahaan Listrik
Negara, known as the Tarahan Project.
October 2001 through August 2004, Mr. Hoskins was employed as
a Senior Vice President for the Asia Region by Alstom UK and
assigned to Alstom Resources Management S.A. in France where
he is alleged to have " performed functions and support
services for and on behalf of various other Alstom
subsidiaries, including Alstom Power US." (3d Indictment
¶ 3.) It is alleged that Mr. Hoskins's "
responsibilities at Alstom included oversight of the hiring
of consultants in connection with Alstom's and
Alstom's subsidiaries' efforts to obtain contracts
with new customers and to retain contracts with existing
customers in Asia, including the Tarahan Project" and
" [t]hus HOSKINS was an agent of a 'domestic
concern,' Alstom Power US, as that term is used in the
FCPA." ( Id. ¶ ¶ 3, 13.) It is in
this capacity that Mr. Hoskins is alleged to have been
responsible for approving and authorizing payments to "
consultants" retained for the purpose of " pay[ing]
bribes to Indonesian officials who had the ability to
influence the award of the Tarahan Project contract." (
Id. ¶ ¶ 7-8.)
31, 2014, Defendant Hoskins moved [Doc. # 149] to dismiss the
Second Superseding Indictment [Doc. # 50] in its entirety,
contending, in relevant part, that the indictment failed to
allege that Mr. Hoskins, as an employee of a non-U.S. Alstom
subsidiary, could have been an " agent of a domestic
concern" subject to liability under the FCPA. The Court
denied [Doc. # 190] Defendant's motion, holding that the
indictment alleged that Mr. Hoskins worked as an agent of
Alstom Power U.S. despite being employed by an overseas
subsidiary and the " existence of an agency relationship
is a 'highly factual' inquiry" and it was "
for a jury at trial in the first instance, and not the Court
on a motion to dismiss, to determine whether the Government
has proven Defendant to have been an 'agent'" of
Alstom Power U.S. (Ruling on 1st Mot. Dismiss at 14-16.)
relevant here, the Third Superseding Indictment altered the
charging language of Count One, the FCPA conspiracy count,
which originally charged Mr. Hoskins with " being a
domestic concern and an employee and agent of [Alstom Power
U.S.]" and replaced it with the allegation that Mr.
Hoskins conspired by acting " together with" a
domestic concern to violate 15 U.S.C. § 78dd-2
(prohibiting domestic concerns from using interstate commerce
corruptly to promise, authorize, or give anything of value to
a foreign official) and 15 U.S.C. § 78dd-3 (prohibiting
any person from taking acts in furtherance of the corrupt
scheme while in the United States). ( Compare 2d
Indictment ¶ 26(a), with 3d Indictment ¶
26(a).) Defendant now moves to dismiss only
Count One of the Third Superseding Indictment.
contends that with the Third Superseding Indictment "
the government makes plain . . . its view of the law"
that Mr. Hoskins " could be prosecuted for conspiracy to
violate the FCPA even when he himself was not subject to the
statute." (Def.'s Mem. Supp. [Doc. # 254-1] at 4.)
The Government maintains that the Third Superseding
Indictment is adequately pled under the governing pleading
standards and faults Defendant for attempting " to
assign to the Government a particular 'view of the
law' based on [the] change" from the Second to Third
Superseding Indictments. (Gov't's Opp'n at 8-9.).
But the Government acknowledges that its theory is that
" even were the jury to find that the defendant was not
an 'agent' of a domestic concern, [it] may still
convict the defendant on one or more of the remaining
accomplice theories," i.e., " aiding and abetting,
causing, and Pinkerton " liability and moves
in limine to preclude Defendant from arguing to the
contrary. (Gov't's Mot. to Preclude Def. from Arguing
that Agency is Sole Basis for Conviction [Doc. # 232] at 4,
these two motions put before the Court the question of
whether a non-resident foreign national could be subject to
criminal liability under the FCPA, even where he is not an
agent of a domestic concern and does not commit acts while
physically present in the territory of the United States,
under a theory of conspiracy or aiding and abetting a
violation of the FCPA by a person who is within the
statute's reach. The Court concludes that the answer is
" no" and that accomplice liability cannot extend
to this Defendant under such circumstances and thus
Defendant's Motion to Dismiss Count One is granted in
part and the Government's Motion in Limine is
explained in greater detail below, the FCPA in its current
form prohibits bribery of foreign governmental officials and
has three jurisdictional bases: (1) where a " domestic
concern"  or U.S. " issuer" of
or any officer, director, employee, or agent thereof
(regardless of their nationality) makes use of U.S.
interstate commerce in furtherance of a corrupt payment, 15
U.S.C. § § 78dd-1(a), 78dd-2(a); (2) where a U.S.
citizen, national, or resident acts outside the United States
in furtherance of a corrupt payment, regardless of whether
they make use of U.S. interstate commerce, id.
§ 78dd-2(i); and (3) where any other person, while in
the territory of the United States, acts in furtherance of a
corrupt payment, regardless of nationality and the use of
interstate commerce, id. § 78dd-3.
maintains that these provisions demonstrate that "
Congress deliberately intended to exclude [non-resident
foreign nationals] from the statute's reach so long as
they did not act while in the territory of the United States
(Section 78dd-3) and did not fall into an enumerated class of
persons with threshold ties to a U.S. securities issuer
(Section 78dd-1) or U.S. domestic concern (Section
78dd-2)" and " the government cannot nullify that
intent by charging such individuals with conspiracy to
violate that statute." (Def.'s Mem. Supp. at 5-7.)
The Government does not dispute the premise of
Defendant's argument--that if Defendant is not proven to
be an agent of a domestic concern, he cannot be held liable
directly under the FCPA--but it maintains that " [a]s a
general rule, the conspiracy and accomplice liability
statutes apply to classes of persons who lack the capacity to
commit a violation of the underlying substantive crime"
and the two narrow exceptions to this rule do not apply in
this case. (Gov't's Opp'n at 1.)
The Gebardi Principle
of accomplice liability under the general conspiracy statute,
18 U.S.C. § 371, and aiding and abetting statute, 18
U.S.C. § 2, generally apply across the United States
Code to impose liability upon those who conspire with or aid
and abet in the commission of any federal
crime. Thus, ever since 18 U.S.C. § 2
was enacted in 1909, " every time Congress has passed a
new criminal statute the aider and abettor provision has
automatically kicked in and made the aiders and abettors of
violations of the new statute punishable as principals."
United States v. Pino-Perez, 870 F.2d 1230, 1233
(7th Cir. 1989). Likewise, 18 U.S.C. § 371, which has
existed in essentially the same form since 1867, generally
criminalizes a conspiracy to commit any federal offense.
Gebardi v. United States, 287 U.S. 112, 121 n.4, 53
S.Ct. 35, ...