In United States v. Hoskins, the Second Circuit affirmed the district court’s ruling that the government cannot use accomplice or conspiracy liability to extend liability beyond the categories of persons who may be charged under the FCPA. In other words, a person may not be guilty as an accomplice or co-conspirator for an FCPA crime that he is incapable of committing as a principal.
Rather, the Second Circuit concluded that the FCPA establishes three categories of persons who are covered by its provisions:
- issuers of registered securities, or any officer, director, employee, or agent of such issuer, or any stockholder acting on behalf of the issuer, using interstate commerce in connection with the payment of bribes;
- American companies or American persons using interstate commerce in connection with the payment of bribes; or
- foreign persons or businesses taking acts to further certain corrupt schemes, including ones causing the payment of bribes, while present in the United States.
The court held that the FCPA contained an Affirmative-Legislative-Policy exception that provides that accomplice liability does not extend to certain persons when the structure of a legislative scheme makes clear that the legislature did not intend to extend accomplice liability to a person who ordinarily would fall within the common law or statutory definition of complicity.
