United States v. Hoskins

          RULING ON DEFENDANT'S MOTION FOR AGENCY INSTRUCTION

          JANET BOND ARTERTON, U.S.D.J.

         Mr. 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.)

         I. Background

         The 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.

         II. Discussion

         The 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.)

         The Defendant's proposed instruction includes in pertinent part:

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.)

         The "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.

         The 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).

         Mr. 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 ...