United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR AGENCY
BOND ARTERTON, U.S.D.J.
Hoskins moves "for a pretrial ruling regarding the
Court's jury instruction on the definition of the term
'agent' as used in the Foreign Corrupt Practices
Act" ("FCPA"). (Def.'s Mem. Supp. Mot. for
Agency Instr. [Doc. # 449-1] at 1.) The Government
"agrees with the defendant that the Court can define the
term 'agent' prior to hearing the evidence presented
at trial" but disputes the substance of Defendant's
proposed instruction. (Gov't Opp. [Doc. # 476] at 1.)
Court assumes the parties' familiarity with the facts and
history of this case. "[F]or a jury to find Mr. Hoskins
guilty of conspiring to violate or aiding and abetting
violations of the FCPA, the government must prove beyond a
reasonable doubt that, inter alia, Mr. Hoskins acted
as an 'agent' of a domestic concern."
(Def.'s Mem. at 1.) The meaning of the term
"agent" is therefore a key question in this case,
but the FCPA itself does not define that term.
parties agree that "the definition of the term
'agent' in the FCPA should be drawn from traditional
agency law principles, and includes an element of
'control'" but dispute the precise language
which should be used to describe those principles to the
jury. (Gov't Opp. at 1.)
Defendant's proposed instruction includes in pertinent
For purposes of your deliberations, as used in the FCPA, an
"agent" is a person who agrees to perform acts or
services for another person or company (known as the
principal) under an express or implied agreement and who is
subject to the principal's control or right to control
the manner and means of performing the services. For example,
an outside consultant or third-party intermediary retained by
a corporation to perform a specific service may be an agent.
An agent of one corporation is not necessarily also an agent
of an affiliated corporation unless a separate agency
relationship with that affiliated corporation is established.
Therefore, in order for Mr. Hoskins to be considered an
"agent of a domestic concern," you must find that:
First, Alstom Power, Inc. manifested its intent that Mr.
Hoskins act as its agent; AND Second, that Mr. Hoskins
accepted Alstom Power, Inc.'s request to be its agent;
AND Third, that Alstom Power, Inc. controlled, or had the
right to control, Mr. Hoskins's day-to-day work for the
duration of the agency relationship. Control is more than
merely the ability to influence. Rather, in assessing whether
Alstom Power, Inc. had the right to control Mr. Hoskins's
conduct, you should consider whether Alstom Power, Inc. had
the right to supervise and assess Mr. Hoskins's work, the
right to approve or disapprove his actions, and the right to
terminate his services.
(Def.'s Mem. at 20-21.) The Government's proposed
instruction includes in pertinent part:
An agent is a person who by agreement with another, called
the principal, undertakes to represent the principal in
performing some service for the principal. To be considered
an agent, there must be a manifestation by the principal that
the agent will act for the principal; the agent must accept
the undertaking; and the parties must understand that the
principal is in control of the undertaking. Such control need
not be present at every moment, its exercise may be
attenuated, and it may even be ineffective. Joint
participation in a partnership or joint venture establishes
'control' sufficient to make each partner or joint
venturer an agent of the others. Proof of agency need not be
in the form of a formal agreement between agent and
principal; rather, it may be inferred circumstantially and
from the words and actions of the parties involved. Finally,
agency need only be found in connection with the specific
events of this case; in other words, one may be an agent for
some business purposes and not others.
(Gov't Opp. at 10-11.)
"FCPA does not define the term 'agent' and where
no definition is provided, courts first 'consider the
ordinary, common-sense meaning of the words.'"
United States v. Hoskins, 73 F.Supp.3d 154, 165 (D.
Conn. 2014) (quoting United States v. Dauray, 215
F.3d 257, 260 (2d Cir. 2000)) (internal quotation marks and
citation omitted). And when a statute '"uses terms
that have accumulated meaning under either equity or the
common law, a court must infer, unless the statute otherwise
dictates, that Congress means to incorporate the established
meaning of these terms.'" Id. (quoting
N.L.R.B. v. Amax Coal Co., a Div. of Amax, 453 U.S.
322, 329 (1981)). But a term's "plain meaning can
best be understood by looking to the statutory scheme as a
whole and placing the particular provision within the context
of that statute." United States v. Gayle, 342
F.3d 89, 93 (2d Cir. 2003). In cases of ambiguity, courts
"may consult legislative history and other tools of
statutory construction to discern Congress's
meaning." Gayle, 342 F.3d at 93.
Government takes issue with four aspects of Defendant's
proposed instruction. First, the Government argues, Mr.
Hoskins "incorrectly states in his motion that the
Second Circuit's definition of agency includes 'the
principal's right to control the agent, '" when
what is actually required is that "the principal need
only control the 'undertaking.'" (Gov't Opp.
at 2.) "Rather than employing this well-established
statement of the law, the defendant instead proposes that the
jury be instructed that the principal must control the
defendant's 'day-to-day work for the duration of the
agency relationship.'" (Id. at 3 (quoting
Def.'s Mem. at 21).) The Government argues that it is
well-settled that "the control asserted need not include
control at every moment; its exercise may be very attenuated
and, as where the principal is physically absent, may be
ineffective." (Id. (quoting Cleveland v.
Caplaw Enterp., 448 F.3d 518, 522 (2d Cir. 2006).
Hoskins responds that the Government is attempting "to
create an artificial distinction between a principal's
control over an 'undertaking' and the principal's
control over an agent's actions." (Def.'s Reply
[Doc. # 481] at 1.) Defendant describes this change in
language as "a distinction without a difference"
because "the 'undertaking' referred to is the
agent's undertaking to act for the
principal," and therefore, "the reference to
'control of the undertaking'" refers to the
principals' authority to control the agent's actions
taken on the principal's behalf. (Id. at 2.)
Despite arguing that the two formulations are functionally
identical, Mr. Hoskins nonetheless contends that "for