United States District Court, D. Connecticut
RULING DENYING GOVERNMENT’S MOTION FOR RECONSIDERATION
JANET BOND ARTERTON, U.S.D.J.
The Government moves [Doc. # 273] for reconsideration of this Court’s Ruling [Doc. # 270] granting in part Defendant Lawrence Hoskins’ Motion [Doc. # 254] to Dismiss Count One of the Third Superseding Indictment, and denying the Government’s Motion in Limine [Doc. # 232] to preclude Defendant’s “FCPA conspiracy prosecution from being de-linked from proof that he was an agent of a domestic concern.” (Ruling on 2d Mot. to Dismiss at 1.)
In so ruling, the Court concluded that Mr. Hoskins could not be held criminally liable for conspiring to violate or aiding and abetting a violation of 15 U.S.C. § 78dd-2 (the first object of Count 1 and the statutory basis for Counts 2 through 7 of the Third Superseding Indictment) except while acting as an “agent” of a domestic concern in connection with the alleged unlawful bribery scheme, pursuant to the Gebardi principle. See Gebardi v. United States, 287 U.S. 112, 123 (1932). For the following reasons, the Government’s motion for reconsideration is denied.
The factual context of this case is set forth in the Ruling [Doc. # 190] denying Defendant’s First Motion to Dismiss the Indictment and is repeated here only as necessary for the legal analysis.
Briefly, Mr. Hoskins is alleged to have participated in a bribery scheme related to the “Tarahan Project” that spanned 2002 through 2009, and which aimed to secure for Alstom Power, Inc. (“Alstom Power U.S.”), a company headquartered in Windsor, Connecticut, a $118 million project to build power stations for Indonesia’s state-owned and state-controlled electricity company, Perusahaan Listrik Negara.
From 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 Superseding Indictment [Doc. # 209] ¶ 3.) The Government alleges 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 [Foreign Corrupt Practices Act].” (Id. ¶ 13.) In his capacity as Senior Vice President for the Asia Region in Alstom’s International Network, Mr. Hoskins is alleged to have approved selection of and authorized 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. ¶¶ 3, 7-8.)
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 Superseding Indictment ¶ 26(a) with 3d Superseding Indictment ¶ 26(a).)
While recognizing that “[t]heories 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, ” (Ruling on 2d Mot. to Dismiss at 7), this Court previously concluded that a non-resident foreign national could not be subject to criminal liability under the FCPA pursuant to accomplice theories of liability or aiding and abetting violations of the FCPA where he is not acting as an agent of a domestic concern or does not act while physically present in the United States.
In so deciding, the Court relied on the Gebardi principle, or the notion that “the Executive [may not] . . . override the Congressional intent not to prosecute” a party by charging it with conspiring to violate a statute that it could not directly violate. United States v. Castle, 925 F.2d 831, 833 (5th Cir. 1991); see also United States v. Bodmer, 342 F.Supp.2d 176, 181 n.6 (S.D.N.Y. 2004) (“In Gebardi, the Supreme Court held that where Congress passes a substantive criminal statute that excludes a certain class of individuals from liability, the Government cannot evade Congressional intent by charging those individuals with conspiring to violate the same statute.”). Based primarily on the text and structure of the FCPA, and considering its legislative history and other courts’ interpretations of the statute, the Court found Congressional intent to exclude nonresident foreign nationals from liability under the FCPA 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). (Ruling on 2d Mot. to Dismiss at 20.) It followed, then, that Mr. Hoskins could only be charged with conspiring to violate Section 78dd-2 of the FCPA (the underlying charge pertaining to Counts 2 through 7) if he was conspiring as an agent of a domestic concern. It is this application of the Gebardi principle that the Government asks the Court to reconsider.
II. Legal Standard
Although “[n]either the Federal Rules of Criminal Procedure nor the Local Criminal Rules expressly provide for reconsiderations, ” such motions are permitted in criminal cases and governed by the same standard applicable to the equivalent civil filing. United States v. Reyes, No. 3:10-CR-120 (VLB), 2013 WL 1882305, at *1 (D. Conn. May 3, 2013); see United States v. Yannotti, 457 F.Supp.2d 385, 388 (S.D.N.Y. 2006) (acknowledging that while the Federal Rules of Criminal Procedure do not expressly recognize motions for reconsideration, such motions “have traditionally been allowed within the Second Circuit”).
Motions for reconsideration require the movant to set “forth concisely the matters or controlling decisions which [the movant] believes the Court overlooked in the initial decision or order.” D. Conn. L. Civ. R. 7(c)(1). The standard for granting such motions is strict as they are not to be used by parties to relitigate issues already decided. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Rather, “[t]he major grounds justifying reconsideration are ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18B C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 4478). In essence, reconsideration should be granted only if “the moving party ...